Hong Kong: ‘You either have the rule of law or you don’t’

University campuses are the new frontline of the Hong Kong protests. Images of defiant students clashing with armed police in centres of learning have stunned the world. 

Yet perhaps the most shocking and potentially significant incident in five months of ever more violent scenes — and one of the main triggers for the campus protests — came when a police officer last week was caught on video firing his gun at point-blank range into the abdomen of a protester moving towards him. The black-clad figure slumped to the ground before trying to escape and being chased down. 

The protester was later charged, while lying in an intensive care bed, with unlawful assembly. Eight days on, the traffic cop has not been disciplined — like virtually all police officers involved in recent clashes — but is off duty to recuperate from his injuries. It was the third such close range shooting of a protester since early October. Police tactics are again under scrutiny as the siege at Hong Kong Polytechnic University continues and the territory’s chief executive Carrie Lam urges talks to resolve the crisis.

For many the shooting symbolised the breakdown in the rule of law in one of the world’s main financial centres, which — in tandem with its legal system — has long distinguished Hong Kong from the rest of China. 

Critics say the protection that the system once offered to Hong Kong’s citizens is being stripped away and instead it is being used as a weapon for the police and government to crack down on the largest pro-democracy uprising on Chinese soil since the 1989 Tiananmen Square massacre.

More than 4,400 people have been arrested in the city since the protests began over a bungled bid to introduce an extradition law that would have made it easier to send people to mainland China. Yet officially there has been just one police officer, from a force of 30,000, suspended over the same period.

“It is outrageous that police officers who have shot people are not put on leave and an investigation of the circumstances of the shooting isn’t launched,” says Antony Dapiran, a Hong Kong-based corporate lawyer. “That happens everywhere in the world, including in the US where police shoot people all the time.”

Officers are only supposed to use their weapons as a last resort if their life is threatened. But there is growing anger in Hong Kong at the behaviour of the police, and the immunity they seem to enjoy, since the unrest began in June. An October survey from the Chinese University of Hong Kong found 51 per cent of the population had zero trust in the police, up from 6.5 per cent before the protests erupted in June. There are calls from protesters to disband the police force.

“No one follows the rules and guidelines any more,” says a frontline police officer aged in his twenties who asks not to be identified. “When my colleagues break the law, they never admit it and our superiors provide cover for them.”

The officer’s personal information has been shared online by protesters in a practice known as “doxxing”. Despite this, he says he is sympathetic to their cause, adding that it is difficult to express his opinions inside the police force. He says he and his colleagues have been assured by commanders that they would be protected even if they fired live rounds at protesters. “There are absolutely no checks and balances any more,” he adds. 

The police force defends the actions of its officers as lawful and justified.

Critics argue that the authorities in both Hong Kong and Beijing are using the legal system as an instrument of political control to target opponents and clamp down on dissent. “Police are acting without restraint, seemingly with the backing of the Chinese Communist party, the central authorities, and without any sort of accountability, without any consequences,” says Dennis Kwok, a barrister and opposition lawmaker. 

The violence by both sides in Hong Kong has rapidly escalated. After last week’s police shooting, a group of anti-government protesters set a man alight. Images of demonstrators using catapults to fire petrol bombs and bricks at police are now common. 

Responsibility for the escalation lies mainly with the government and police, opinion polls suggest. A survey released by the Hong Kong Public Opinion Research Institute last week found 83 per cent of people blamed the Hong Kong government for the increase in violence, 74 per cent blamed the police and 41 per cent the protesters. 

Policing problems

“It is very unfair for anyone to put the blame on police officers for the current chaotic and panicked situation,” says John Tse, the chief of the police force’s public relations branch. “Who would have imagined a university has become a manufacturing base for petrol bombs and a refuge for rioters and criminals?” 

For months, pro-democracy advocates have been calling for an independent inquiry into the policing of the protests that they say includes incidents of torture in police detention, acts of random violence and brutal tactics that have injured protesters. Images of children in school uniform lined up against a wall being arbitrarily searched and videos of police on footbridges throwing rubbish bins on to protesters below have gone viral.

The seeming lack of accountability stands in contrast to the last pro-democracy demonstrations in Hong Kong in 2014, when students occupied roads in central Hong Kong for 79 days. Then, five officers were imprisoned for assault. And a retired police superintendent was convicted of hitting an unarmed pedestrian with a baton.

But now there is a widespread practice of police officers covering their faces and taking off their identification numbers, making it more difficult to prosecute or investigate illegal acts or abuses of power. The officers justify removing their ID numbers to avoid them being targeted online.

Government supporters argue the police force has not done anything that requires prosecution. “I’m absolutely certain that the secretary for justice would prosecute any policeman who has committed a criminal offence in using excessive and unreasonable force in maintaining law and order,” says Ronny Tong, a senior counsel who sits on Hong Kong’s de facto cabinet. “But up until this moment, we have not seen a single incident which correctly answers this description.” 

Despite the plummeting level of trust in Hong Kong’s police force, it is celebrated across the border in mainland China. “Bald Lau Sir”, who rose to fame in Hong Kong when he pointed a shotgun at protesters outside a police station in July, was one of 10 officers feted as an honoured guest at China’s National Day celebrations in Beijing in October. He has 1m followers on the Chinese social media platform Weibo, where he posts about protesters being “cockroaches” and “terrorists”.

“Part of what is happening right now in Hong Kong is that the police force is in the process of being co-opted by Beijing and is in the process of going from being accountable to the community that it polices to being enforcers of Beijing’s rule in Hong Kong,” says Mr Dapiran.

When Han Zheng, Beijing’s top official for Hong Kong affairs, met Carrie Lam, the territory’s chief executive, this month he said “the most important task for Hong Kong right now is to stop the violence and restore order”. 

“This is the common responsibility of Hong Kong’s executive, legislature and judiciary,” he said.

The comments sparked a swift backlash. Hong Kong Bar Association, the top legal body representing the territory’s barristers, hit back. “Any statement made by the Central People’s Government or its officials, which could be taken as an official exhortation to judges to achieve a particular objective, may be seen as an encroachment on the independence of the judiciary,” it said.

“When the Chinese authorities talk about the rule of law, what they really mean is rule by law or law and order,” says Mr Kwok, the opposition politician. “I don’t think they recognise or understand what the rule of law means.”

The language of Beijing is being adopted by the Hong Kong authorities. “Rule of law has been pushed to the brink of total collapse as mass rioters recklessly escalate their violence under the false hope that they can get away with it,” Kong Wing-cheung, a senior police superintendent, told journalists the day after last week’s shooting.

But this misses the point, according to HKBA chairman Philip Dykes. “Protesters who break the law are not actually undermining the rule of law as such, because the rule of law operates to hold them accountable for their acts.”

Hong Kong’s rule of law, including its independent judiciary, is ranked among the best in the world: it was 16th out of 126 countries in the World Justice Project law index in February. 

But beyond an independent judiciary, the rule of law is also about effective restraints on government power, separation of powers and equality before the law, crucial tenets under threat right now in Hong Kong, says Wilson Leung, a barrister and spokesman for the Progressive Lawyers Group, which is dedicated to upholding the rule of law in Hong Kong.

“‘One country, two systems’ underscores the major value for business to be here. If the rule of law is truly punctured, Hong Kong will never be the same again,” says Tara Joseph, President of the American Chamber of Commerce in Hong Kong. “We’re not there yet but we’re starting to test the boundaries.”

Ms Lam’s decision to bypass the legislature in October to invoke emergency powers, based on a colonial-era bill from 1922, set off alarm bells for some. The powers — which include blocking the internet, controlling transportation and seizing property — banned protesters from wearing face masks, imposing a maximum penalty of up to a year in jail to quell unrest. But the threat was not heeded and the move triggered some of the most violent clashes seen so far. 

On Monday, Hong Kong’s High Court declared the anti-mask law unconstitutional, a sign the city’s independent judiciary is still able to act as a check on government power. The government will probably appeal against the decision. 

But in a dramatic intervention on Tuesday, China’s parliament signalled its “strong dissatisfaction” with the court ruling, a further sign of Beijing’s encroachment on Hong Kong’s legal system. 

Any deterioration of the rule of law in Hong Kong is part of a wider process, says Eric Cheung, a law lecturer at the University of Hong Kong.

Over the past five years, the government has disqualified pro-democracy lawmakers from parliament, prosecuted leaders of the 2014 Umbrella Movement and effectively expelled the Asia news editor of the Financial Times. In October, the prominent, pro-democracy activist Joshua Wong was barred from running in district council elections. Lawyers say that decision was an example of the executive branch of government exercising its power arbitrarily for political ends.

The Standing Committee of the National People’s Congress (NPCSC), a political body in Beijing, is the final authority on interpreting Hong Kong’s mini-constitution, known as the Basic Law. Most recently it effectively disqualified pro-democracy lawmakers over their swearing-in oaths. Many protesters say the expulsion of candidates that they had voted for was an important trigger for the unrest.

“Once it becomes a norm for the NPCSC to interpret the Basic Law, every time it does so it brings the mainland concept of law to Hong Kong,” says Mr Cheung.

In another move that worried the legal community, Teresa Cheng, Hong Kong’s secretary of justice, in October obtained an interim injunction to prevent people from sharing information online that “promotes, encourages or incites the use or threat of violence”. Internet freedom advocates argue this directly threatens the right of freedom of expression enshrined in the Basic Law. An injunction granted a week earlier banned the doxxing of police, despite people on all sides of the political spectrum falling foul of this malicious practice.

“If the government is genuinely trying to resolve the crisis, getting more injunctions, having more emergency regulations [and] shutting down the internet is not going to resolve anything,” says Mr Kwok. “We need a political solution but what we’re seeing is not only a complete democratic deficit but also an authoritarian nature seeping into the government.”

The government has now largely banned public assemblies — in June an estimated 2m people took part in a peaceful street protest — and imposed a de facto curfew on the city by shutting down its subway system at the first sign of any protest.

“It is a worrying sign that the government is now doing many things that they don’t need to do through the operation of the law . . . and that may apply to some big corporations [including] Cathay Pacific,” says Mr Cheung. Since the protests began, brands including Hong Kong’s flagship carrier, America’s National Basketball Association and the Big Four accounting firms have all come under fire from Beijing for being perceived as sympathetic to the protests.

“The moment you have opacity and unpredictability in one part of the legal system, it could easily apply to other parts of the system as well. The rule of law is an absolute,” says Mr Dapiran. “You either have it or you don’t.”