First Principles

The public debate over the significance of the Mongkok riot three weeks ago is being muddied because of confusion about the meaning of certain terms. For example, the expression "Rule of Law" is being used interchangeably with "Rule by Law" when they are actually quite different concepts. The state of law and order at any one time is another proposition altogether, and when some have seized on the incident as justifying bringing forward Article 23 legislation as a matter of urgency, what you end up with is a recipe for a muddle.

The rule of law is the legal principle that law should govern a community, as opposed to being governed by arbitrary decisions of individual government officials. It is a constraint upon behaviour, including behaviour of even the most senior government officials. It is an intrinsically moral notion, which implies every citizen is subject to the law, including lawmakers themselves.

Rule by law, on the other hand, is nothing more than a convenient way of governing. A prescriptive law is enacted, and thereafter shapes the subsequent actions of the administration and the community. (Laws that discourage certain behaviour are proscriptive.)

Hong Kong generally adheres to the British model of Rule of Law. It explains, for example, why a former chief secretary sits in Stanley prison and even a former chief executive must face the courts on a charge of misconduct in office.

The USA, by contrast uses both Rule of Law (hence the impeachment of President Nixon) and Rule by Law. The Affordable Care Act – more commonly known as "Obamacare" – is a prominent recent example of the latter.

The state of lawlessness or public order tells us about the mores of the community we live in. We are very lucky here: crime is generally low, people settle disputes peacefully, ordinary citizens do not feel threatened when going about their private business or walking the streets late at night.

Article 23 is the section of the Basic Law which requires Hong Kong, on its own, to enact laws protecting national security. Despite claims to the contrary, these matters are not connected.

Some of our top officials have said publically on the record that the Mongkok riot was an attack on the rule of law. It was nothing of the sort. It was a serious breakdown of public order, hopefully a one-off short term episode. The most serious recent attack on the rule of law here was probably the statement by the head of the Central Government Liaison Office that the chief executive had a transcendent status, superior to the executive, legislative and judicial branches. The chief justice had to personally come out and make a clear public statement that no-one was above the law.

What of the attempt to smuggle Article 23 legislation through the Mongkok window of opportunity? Now I am on the record in this column as saying Hong Kong should enact such legislation, because it is a quite natural thing for communities to have and there is a constitutional obligation to do so. But would such a "Rule by Law" measure have inhibited the rioters? Judging from the evidence of the TV images, I seriously doubt it. Scores of people have been arrested and brought before the courts using existing legislation which is proving quite adequate for the purpose, so the case for more legislation in the same area is weak to non-existent.

But there is one aspect in which a proper analysis of the context in which the riot took place should identify a serious gap in our political environment. The concept of rule of law carries with it an implied compact that ordinary citizens have a meaningful say in the selection of their leaders. The failure of the administration’s political reform package last summer means we are lumbered with a chief executive without a proper mandate. What’s more, the package deserved to fail. While there is nothing inherently wrong with transforming the election committee into a nominating one, that step had to be accompanied by a substantial overhaul of the body’s composition and selection methods to make it more representative. There was no such change.

It is nonsense to suggest that greater democracy is the solution to all of Hong Kong’s problems. The most we can expect is a marginal improvement in accountability and if we are lucky efficiency. But the one thing universal suffrage does do is provide a safety valve by giving us the opportunity, every five years or so, to "throw the rascals out". Without such an outlet, where is the steam to go when it builds up? The answer in our case turned out to be Argyle Street. Unless we have meaningful political reform soon, there is a real danger it could all happen again.