HK society to benefit from law banning insults to police

Since October 2016, proposals to introduce legislation against insults to police officers have been discussed on at least seven occasions at the Legislative Council. In mid-2017, three members of  LegCo made a futile attempt to propose the Public Order (Amendment) Bill to criminalize verbal abuse of police officers. But critics tended to frame the amendment as a curse rather than a blessing.

To the pleasant surprise of supporters of the proposed legislation, Chief Executive Carrie Lam Cheng Yuet-ngor recently told us that Hong Kong would consider expanding the coverage of a law that would ban the act of insulting the police force as well as civil service workers (“the proposed legislation”). Partly because of the increasing reports of on-duty police officers being insulted in massive demonstrations in 2019, and partly because of the promulgation of the National Security Law for Hong Kong, Hong Kong society is undergoing a fundamental change toward a more supportive attitude toward the proposed legislation. We will discuss the benefits of the proposed legislation and respond to the criticisms raised by critics in the following discussion.

It is estimated that around 15 advanced places in the world have statutory provisions prohibiting insults to public officers on duty. To obtain a popular mandate, democratic countries are eager to convince their critics that the benefits of these provisions outweigh the disadvantages. For example, France felt a compelling need to bring the benefits of the legislation prohibiting acts of insults to public officers to the forefront of the minds of skeptical opponents during the Yellow Vest Movement in 2018-19.

We attempt to provide a broader lens for assessing the benefits of the proposed legislation. The proposed legislation is concerned not only with the protection of the dignity of these public officers in the execution of their duty from insults but also, just as importantly, the protection of the authority of public officers against insults (“the two protection argument”). It is an unassailable fact that the gradual erosion of the authority of public officers will have a withering effect on the authority and credibility of the government.

An inconspicuous erosion of the authority of public officers is different from, and perhaps more serious than, immediate disruption of public order brought about by insulting remarks made to these public officers. Nearly all common law jurisdictions (with the exception of Singapore) do not consider verbal insults made to police officers as a criminal offense, unless they involve a breach of public order which has a higher prosecution threshold. The guidelines of the Hong Kong Police Force state clearly that abusive behavior toward police does not itself constitute an offense in either criminal law or common law.

In the past few years, disruptive activities of the opposition camp within the institution (mainly in the Legislative Council) and protests staged by the radicals outside the institution have led to serious impediments on socioeconomic development in Hong Kong. Even if the policies of the government were consistent with mainstream views of right and wrong, and even if they were beneficial to the well-being of our society, the Hong Kong government would face great difficulties in implementing these policies. The above difficulties are attributable in part to the disruption caused by the opposition and in part to the gradual erosion of the authority of the government. We cannot cling naively to the belief that the massive amount of insults made by protesters against police officers in 2019 would not undermine public confidence in the authority of the police, which would inevitably result in an indirect slap to the authority of the government.

If the two-protection argument fails to buy critics’ silence on the proposed legislation, the recent judgment made by the French Constitutional Council in 2021 in relation to the controversial contempt law may help put an end to the perceived fear that freedom of speech would be severely undermined by the proposed legislation. As a piece of background information, the contempt law in France extends protection to persons executing a public service mission. It was held by the Constitutional Council that contempt of public officers constitutes an abuse of the freedom of expression, undermining public order and the rights of third parties.

Freedom of expression is not an absolute concept and it must be weighed with the reasonable and necessary restrictions that constrain its operation. According to Article 16(3) of the Bill of Rights Ordinance, freedom of expression is subject to certain restrictions, which are triggered where it is reasonably necessary to respect the rights or reputation of others or for the protection of public order (ordre public), national security, public health or morals. Similarly, Article 19 of the International Covenant on Civil and Political Rights allows the above freedom to be overridden by considerations of reputation, national security, public order (ordre public), public health or morals (“legitimate restrictions”).

Unlike common law legal scholars, French legal scholars tend to examine the legitimate restrictions from a wide perspective. For example, Alexandre Kiss, who is known as the father of international environmental law, is also a French expert in human rights. He has adopted an expansive definition of public order (ordre public) as including what is necessary for the protection of the general welfare or for the interests of collectivity as a whole. This may explain why French people have taken a relatively accommodative attitude toward the contempt law.

Another criticism focuses on the disproportionate power given to public officers. It is hard to dispute that the new balance of power will tip lopsidedly in favor of public officers. Black sheep in the police force or other government departments may not be able to resist the temptation to abuse their power because they are no longer afraid of attracting abusive complaints from the affected people. With past record as a guide, we should be fully confident that our judiciary is capable of keeping a reasonable check on the power of public officers. The ombudsman is also a good gatekeeper. With regard to the police force, the two-tier police complaints mechanism (i.e., the Complaints Against Police Office and the Independent Police Complaints Council) are capable of keeping a watchful eye on police misconduct.

Junius Ho is a Legislative Council member and a solicitor. 

Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and the Macao Basic Law Research Center, and co-founder of the Hong Kong Coalition.

The views do not necessarily reflect those of China Daily.