Saturday, October 18, 2014

Police and the Rule of Law

Although it is a trite thing to say that the rule of law is essential for Hong Kong’s freedom and prosperity, people from different walks of life in Hong Kong have repeated this claim over and over again in the past few months. Critics of the Occupy Central Movement (OCM) are quick to point out that civil disobedience not only violates certain laws but also damages Hong Kong’s rule of law tradition. Mr. Benny Tai who has passionately advocated and organised the movement also says that he treasures the rule of law. For him, Hong Kong’s rule of law tradition is at risk and eroding right in front of our eyes. His OCM argues that there is a strong need to give people a wake-up call so as to protect and strengthen the rule of law in Hong Kong in the longer term. 

What do people have in mind when they talk about the rule of law in Hong Kong?  For some, it is first and foremost judicial independence; for others, it is the courage of the legal profession to act out when arbitrary power appears on the horizon; and most people would agree that rule of law means the obedience and fidelity to legal rules on the part of the ordinary Hong Kong people.

One neglected aspect in Hong Kong’s rule of law discourse is the importance of accountable and effective law enforcement, especially by the police, in creating a sustainable rule of law tradition. 

Political scientists since Hobbes have identified the maintenance of peace and order as core functions of a legitimate state. In a society with a deficit of democracy, social stability and effective control of crime provide adequate legitimacy. In that regard, police effectiveness and accountability are indispensable in legitimizing a political order. Criminologists have also proved that police matter the most in maintaining peace and order and it is principally the diligence of police men and women in the front line who make us safe. It may not be much an exaggeration to say that Hong Kong is one of the safest cities on earth and Hong Kong has one of the best police forces in the world. 

Hong Kong has come a long way in building and maintaining a well-disciplined, highly regarded and effective force. It has taken the collective effort of generations of people to create this reality. The Hong Kong Police Force excels in two fundamental ways. The first is its political neutrality in the sense that the police enforce the law fairly, equally and, above all, effectively without political considerations entering into the process. This important, relative distance from politics has allowed the police to develop a high level of professionalism, effectiveness and accountability in Hong Kong. Second, an accountable and effective police in turn nurtures fine police and community relations and the degree of mutual trust between the police and citizens is high. 

The OCM has unfortunately placed tremendous pressure on the police and posed challenges to both political neutrality and community relations. Without doubt, it is extremely difficult, if possible at all, to insist on neutrality in all circumstance in policing given the embedded nature of police in politics. Given the sensitivity about the OCM amongst all parties involved and the political attention that the OCM has received, it is not possible to avoid political pressure, either from Beijing or from a worried Hong Kong Government, entirely. The use of force on the first evening of the OCM was plainly excessive and unnecessary. It is hard to believe, as the government is arguing, that it was merely an operational decision which led to this unprecedented use of force. The Hong Kong police force, given its experiences in public order policing and its level of professionalism, would have known how to have managed matters better. It is highly likely that the OCM has rattled either Beijing or the Hong Kong government into dictating some police operational matters. Police professionalism may have been sacrificed to political expediency.

There is also the second, and a bigger, disaster – the high level of tension between the police and a significant sector of the public. Effective police work relies on public support and the trust that the police and the public place have in each other as the key to any successful maintenance of public order. Unfortunately the OCM, which started with a demand for Beijing to withdraw its most recent decisions on the 2017 election of the CE, has slowly and painfully mutated into a direct confrontation between the police and the public. The frustration arising from this process has hijacked the original objectives and there is the possibility that the police will become the scapegoat in the blaming game.

As the OCM goes on, it is becoming crystal-clear that our political system, our police system in particular, is more fragile than what we have taken for granted. We have a decent police force that we are proud of, but we may lose it more quickly than we can imagine. As a law enforcement agency, the police are ill-fitted to meet competing political demands. The force is bound to be hard-pressed in maintaining order in an increasingly polarized society. Significant changes in the external environment could swiftly cause a chain reaction within the police force leading to a qualitative change in the internal dynamics. There may be an authoritarian DNA in any police force which may manifest itself in certain circumstances.  The OCM has generated massive international and domestic pressure, evil or benign, that our policing system may not be able to bear. Even if, as most everyone hopes, the OCM is wound back greatly and some discussions begin as soon as possible, we have learned a most important lesson about how rapidly the foundations of our high quality police force can be placed in jeopardy.

Hong Kong has long enjoyed judicial independence, an active legal profession and a free press, but Hong Kong did not always have the rule of law as we define the term. It is the changes in the policing in Hong Kong, especially since the 1970s, which have played a key part in this vital game change. A police force that is clean, effective and accountable, is what makes our rule of law possible. Police are important for us and indispensible for our law and order. Let’s think more carefully about the difficult position in which the OCM has placed our police force.  Written by Hualing Fu.

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