Recent court proceedings confirm that many rioters involved in the 2019 turmoil are just young students. Over the years, many youngsters have been radicalized by, among others, vocal lawyers. They were told that unlawful violence can sometimes “solve problems”, or make life “colorful”. Many others, including law lecturers and teachers, have helped disable the law by giving “moral halos” to them: that the law should not apply if you are fighting for what you perceive to be “freedom” or “democracy”; that is, if you are “sacrificing” yourself for “justice”, and so on, you are above the law. Many of these “educated adults” have themselves fallen victim to radicalism.
Court rulings also reveal that these rioters would have posed threats to the national security of the People’s Republic of China by abusing the many freedoms in the Hong Kong Special Administrative Region. During that violent turmoil, rioters had perpetrated countless incidents of street violence, arson, wounding, intimidation, vandalism, false imprisonment, dangerous interference with mass transport systems, cyberbullying and even setting people on fire. Police investigations revealed that some 4,000 firebombs were thrown on the streets and at court buildings, police stations and other public and private facilities, with another around 10,000 firebombs seized from the premises of two universities and other locations.
That so many youngsters had been incited to commit unlawful violence is distressing to all. They were likely to have been taught a distortedly positive image of Western liberalism, and a distortedly negative attitude toward national security. These dual misconceptions must be put right. National security is the foundation of social order within which true freedoms and the rights of the people can be realized, the rule of law can operate, and prosperity and progress can be pursued. The national security of all countries deserves optimal protection.
Recent centuries of historical development have divided countries into two main classes, i.e., the “developed or dominating countries”, and the “developing or dominated countries”. For the dominated countries, their proper national security goal is to interact with and dissipate the dominating force in order to achieve true universal values. History scholars have argued that domination by developed Western powers over developing countries has invariably been oppressive, discriminatory and immoral, whether subtly or explicitly.
Western liberalism has failed to generate true universal values. Western liberalism is driven by amoral individual desires. This amorality means that desires can generate ambivalent, i.e., both moral and immoral consequences. Amoral liberalism has become an ambivalent, dominating force. It has generated centuries of ambivalent impact worldwide: surely the rule of law, wealth and progress on the positive side; but also unending wars, malignant inequalities, social divisions, discriminations and dishonesty on the downside. “Core liberal values” such as “freedom”, “democracy” and “human rights”, insofar as they are desire-based, are inherently amoral and ambivalent. They are not yet true universal values, though they remain promising candidates.
Among the liberal values, the common law is somehow exceptional in that it promotes freedoms and rights on the basis of duty. For instance, freedom of speech arises only when everyone abides by his or her duties to obey the laws that prohibit defaming others, injuring others, or causing chaos in conference proceedings, etc. These duties suggest that the so-called “right to offend” others can easily negate freedom of speech, rather than forming part of it. Individual freedoms, or rights, are not “free-standing”, but depend on duty-sustained legal orders which apply equally to all. For freedoms, democracy and human rights to become true universal values, they need to be transformed from desire-based orientation to that of duty-based. In this regard, the rule of law principle is able to provide a cogent, rational platform for this transformation to occur. Only through optimal protection of national security can the rule of law, and with it, true enjoyment of freedoms and rights in the HKSAR be sustained.
The National Security Law for Hong Kong (NSL) was enacted in 2020 to achieve protection of national security in the HKSAR, a task demanded by the Basic Law since 1997. To preserve the special status of the HKSAR under “one country, two systems”, the NSL and the Implementation Rules are to be applied in a common law context as provided by the Basic Law. The NSL contains 66 articles divided into six chapters. It begins by reiterating in Article 4 that human rights shall be respected and protected in safeguarding national security in the HKSAR.
Article 4 provides: “Human rights shall be respected and protected in safeguarding national security in the HKSAR. The rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the HKSAR and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.”
The NSL sets out, among other measures, four types of offenses in its Chapter III. They are: secession; subversion; terrorist activities, and collusion with a foreign country or with external elements to endanger national security. These offenses are specific in their scopes and are meticulously structured in terms of their offense elements. Each offence requires cogent evidence to prove. Fair and effective powers of investigation can ensure that the subsequent prosecutions and trials are speedy and fair. As the Court of Appeal in the “Yeung Chun Pong and Others vs Secretary for Justice” case has emphasized, “there is a clear public interest in ensuring that charges, once before a court, must be tried. There is built into the system a host of safeguards to secure for an accused a fair, and an appropriately speedy, determination.” The criminal justice system of the HKSAR, while not perfect, is cogent, effective and fair. Improper application of civil case principles to these proceedings by the defense may thwart a prosecution properly brought, and, if improperly applied by the prosecution, may deny a defendant of his or her fundamental rights to a fair trial, or to pursue appeals.
Fair trials may also be denied by overseas ideological or political interference based on the dual misconceptions about liberalism and national security. There is an embedded “logic” in the domination relationship which tends to prolong these dual misconceptions, and which should be guarded against. Two aspects of this “logic” can be mentioned: (a) Domination causes the dominated to struggle for effective measures for survival. Effective measures often demand collective actions under resolute leadership, against which the dominating countries would easily be tempted to denounce as unacceptable “authoritarianism” or “totalitarianism” (perhaps especially unacceptable when these measures are effective in countering foreign domination). In the context of the dominated, “collectivism” or “authoritarianism” etc., may often be a functional necessity more than a matter of preference. (b) Domination may disrupt the social fabrics of the dominated countries and hamper their duty-order building for freedom and wealth production. With inadequate freedom and wealth produced for distribution, dominated countries tend to be unstable, that is, they may more easily be confined to the “inadequacies-instability- inadequacies” vicious cycle.
Thus the “developed” dominating powers can often create the misleading, paradoxical effects of “morally” vindicating their immoral domination, and inhibiting the dominated to regain autonomy. But dominating countries cannot be the judges of their own cause. The true nature and effects of their impact on the dominated countries are not to be judged by the value system of the dominating ones (i.e., the flawed, amoral liberalism), but by the higher moral norm of mutuality. This mutuality norm demands our unconditional duties to respect each other as equals, to treat each other as ends not means, and to sacrifice for each other when situations demand. Domination, despite continuing attempts to justify its evolved forms by “liberal values” (such as desire-based, amoral democracy and human rights), cannot generate sustainable world peace or mutual progress. While rational exchanges are often beneficial to humanity, ideological interference by the dominating over the dominated is not. Such interference is likely to be counterproductive, weakening the security and stalling the progress of both sides.
The writer is a senior counsel who joined the Hong Kong Legal Department in the mid-1980s, and stayed in public service for over 20 years.
The views do not necessarily reflect those of China Daily.