It was therefore very gratifying to see the Chairman of the Bar Association, Paul Shieh SC, pick up on the same theme. This is an excerpt from his recent speech at the Opening of the Legal Year Ceremony (the complete text of which can be found here):
“China, the sovereign state for Hong Kong, does not practise the type of Rule of Law as we understand it to mean. It has its own reason for doing so, and I am not passing any judgment on it. Maybe (or maybe not) because of this, there was an increasing tendency on the part of the executive in Hong Kong, in its public statements, to emphasise the “obey the law” aspect of “Rule of Law”. Comical it may sound, the Government in Hong Kong has become accustomed in recent years to preface almost every description of what it does by the phrase “doing so according to law”. For example it would say that elections to the legislature had been held according to law, police had arrested suspects according to law, the Government governs Hong Kong according to law, policies are formulated and implemented according to law. Everything is done according to law.
To the untrained mind or the unsophisticated, this may sound very respectful to the concept of the Rule of Law. After all, to respect the Rule of Law one must obey the law and do things according to law. However, in my view and in the view of the Hong Kong Bar, ironically that could have the opposite effect of misleading the public as to the meaning of the Rule of Law.
First, as we all know, Rule of Law means far more than just blind adherence to laws – respect for an independent judiciary, the need to ensure minimum contents of laws in terms of human rights protection, respect for the rights and liberty of the individual when law enforcers exercise their discretionary powers are examples of requirements of Rule of Law which go beyond just obeying the law. In fact it can be said that over-emphasis of the “obey the law” aspect of “Rule of Law” is the hallmark of a regime which is keen on using the law as a tool to constrain the governed, rather than as a means to constrain the way it governs.
Second, such repeated notions of “doing things according to law” demean the law and deflect attention from the real issue. The problem arose when the public or the media comments on or criticizes a certain Governmental policy, or executive action, “on its merits” so to speak. No one complains about legality of conduct; rather, political responses or justifications are being called for. Law only provides the minimum requirement to be fulfilled by any Government. Responses by way of” “doing things according to the law” creates the misconception that many phenomena in society are the inevitable consequences of adhering to the law (when plainly they are not). Law had become the scapegoat or excuse.”
The phrase “Rule of Law” is often associated with well established liberal and civilized regimes. It has a positive connotation. Indiscriminate use of the phrase “Rule of Law” could confer undeserved moral respectability upon a “Rule by Law” or “Rule by Man” regime.”
Of course, the Chairman of the Bar Association would no call out that despicable liar CY by name, but his words “the Government in Hong Kong has become accustomed in recent years”, leave little doubt as to Paul Shieh’s thoughts on where this trend emanated, a fact betrayed by CY himself when he recently stated:
“Hong Kong is a city with the rule of law and our policies must be based on these laws.”
Unfortunately, Paul Shieh’s time as Chairman of the Bar Association is coming to an end but hopefully his wise words will guide his successor.