The Departure from Justice and the Weaponization of Law
As Hong Kong becomes increasingly "Sinicized", even the idea of 'the rule of law' has been mutilated and weaponized.
"The Rule of Law" and "Justice" are terms we often bandy about, yet few endeavor to explain them in layman's terms. Particularly in today's Hong Kong, 'the rule of law' has assumed a distinctly 'Chinese characteristic,' severing ties with justice.
Many have taken note of, the Secretary for Justice, Paul Lam's recent comment regarding the rule of law: he suggested measuring Hong Kong's rule of law based on the prevalence of jaywalking. This sparked more than just surprise over the statement itself; it cast serious doubts on the Secretary's legal credentials! It's hard to believe that someone with a solid legal education could express such a bewildering viewpoint.
Textbooks will tell you that the essence of law is restraint. Hence, the definition of the rule of law is that governments and authorities must always abide by the law.
It sounds simple, doesn't it?
But let me offer an alternative explanation: "Anyone suing the government has a reasonable chance of winning."
Note my emphasis on “reasonable chance.“ I don't mean that citizens always win against the government, but that they have a fair shot.
What constitutes 'reasonable'? How do we measure the level of the rule of law? The question of whether Hong Kong still has the rule of law is a "testable hypothesis.” We can analyze court decisions, whether criminal, civil, or judicial reviews, and assess if the public stands any chance of winning against the government. Of course, each case is unique and should be decided on its own merits. However, from a sociological perspective, the level of the rule of law can indeed be measured, just not by counting the number of jaywalkers.
We can train AI models with relevant legislation and past rulings. Then we can simulate the legal reasoning with the help of machines by feeding the evidence to the machine for assessment. We can then compare these results with actual verdicts. If we want to be more sophisticated, we can run statistical tests to find out if there are any observable patterns in how cases are decided. We can even determine if certain kinds of cases or judges are particularly fair or biased. Essentially, it is scientifically verifiable if Hong Kong's rule of law is crumbling and when the decline began.
Today, I also wish to discuss another concept: 'Justice.'
Some say justice is nebulous. Some even doubt its very existence. Philosophically, postmodernists argue that in a world devoid of class and racial differences, where everyone is an individual, the concept of justice loses meaning.
Yet, until such a utopia manifests, our pursuit of justice persists.
So, what is justice? The term 'justice' in English, derived from 'just,' implies appropriateness.
In other words, when both parties involved in a matter deem the outcome appropriate, it's “just”. But from a societal standpoint, it's not just about two individuals' feelings towards the outcome. When an independent third-party observer finds the outcome just, it is justice.
A just society is one where most matters are deemed ‘just' from the perspectives of the first, second, and third persons. This is an ideal; reality often falls short. But we should always strive not to stray too far from this ideal.
Thus, a court ruling, or any form of mediation, is just when it satisfies both parties; and from a third-person perspective, the outcome seems reasonable. The institution of the judiciary exists to represent this 'impartial third-party' perspective.
Why does the government provide judicial services from a systemic viewpoint? While not a necessity, justice does bear semblance to public goods in economics. When anyone's justice is upheld, everyone feels protected, and benefits from the precedent set.
Considering Hong Kong's current state, do ordinary people stand a reasonable chance in lawsuits against the government? Take the case of Jimmy Lai. Despite not having his day in court, he's been detained for over a thousand days. But the critical question is, will he ultimately receive a fair trial? His desire to appoint Tim Owen as his lawyer was rebuffed; Owen himself, once considered for the role, was considered persona non grata and denied entry to Hong Kong by the SAR government.
Lai is deprived of even the freedom to choose a lawyer. How can one believe it will be a fair trial?
Lai's case is but one among many.
As Hong Kong becomes increasingly "Sinicized", even the idea of 'the rule of law' has been mutilated and weaponized. 'The Rule of Law' has morphed into 'the rule by law'; and the legal institution is no longer a safeguard for the people but a machinery of control.
Friedrich Hayek, in Law, Legislation and Liberty, made the distinction between 'Law' and 'Legislation.' Law is a reflection of human nature and logic; it is a natural order of human society, transcending individual whims. Legislation is merely a human construct. When legislation reflects 'Law,' the natural rules, societal order allows for human flourishing. However, if the legislation is merely the wishful thinking of rulers, such legislation often becomes difficult to enforce or comes with a great cost when implemented. Of course, wishful thinking legislation cannot possibly conform to the definitions of justice, as it can hardly be considered just by anyone other than the one who commanded the legislation. Such legislation even violates basic human nature and reason. For instance, legislation demanding absolute loyalty to rulers is an illogical, unjust, and irrational fantasy.
Regrettably, today's Hong Kong is precisely this kind of society governed by 'rule by law'.