The right to dissent|Yan Kei

Published (HKT): 2020.09.07 10:01

Justice Deepak Gupta, a former Supreme Court Justice of India, has recently said that right to dissent is the most important right granted by the Constitution of India. He went on to say that the freedom of speech and expression, the freedom of peaceful assembly and the freedom to form associations are vehicles through which dissent can be expressed. Yes, right to dissent is an important democratic principle. And the right to dissent is very much part of ethos of Hong Kong. Trying to remove or suppress that important characteristic of the society of Hong Kong can damage the spirit and progress of Hong Kong as a free, prosperous and healthy society.

The notion of “Asian Values” was promoted by many authoritarian and undemocratic regimes in Asia in the 1990s to justify systematic rights violations. In fact, a common tool used during these periods to suppress dissent was national security laws. National security laws provided a broad framework to those regimes to suppress dissent through arbitrary arrests, shutting down associations and banning peaceful gatherings. Dissenters were often charged with politically motivated prosecutions. Often, judiciaries in that era could not adjudicate independently and transparently so that many people in those countries lost faith in the systems. However, subsequently many Asian dictatorships such as those in Indonesia and South Korea declined. Such changes came at a heavy cost to people’s lives and freedoms. But people did not stop fighting to restore their freedoms and dignity. They lost many battles, but in the end, won the war. Many of these countries, subsequently embraced reforms to move away from such narrow and extreme positions such as developing economy at the expense of basic freedoms of the people. Justice Gupta also said that “dissent is essential in a democracy, and if a country has to grow in a holistic manner in which not only the economic rights but also the civil rights of the citizens are to be protected, dissent and disagreement have to be permitted, and in fact, should be encouraged.”

While regimes in Asia have generally progressed from dictatorships to democracies, and legal frameworks have transitioned towards the rule of law from rule by law and people have gradually regained their right to dissent, a complete transition to a truly democratic society based on the rule of law is a long one. For example, in 2015 people of Malaysia came out in hundreds of thousands to protest against corruption and injustices. Those peaceful protests were also supported by anti-corruption protests in over 70 countries around the world and strengthened the anti-corruption movement, resulting in a change in the government and prosecutions against politicians for corruption. However, the current administration in Malaysia has started several criminal investigations into journalists and civil society organization representatives mostly for defamation, and violation of the Communications and Multimedia Act (CMA). Human Rights Watch urged the Malaysian Government to stop treating criticism as a crime and assert that “everyone has a right to criticize their government without fear of investigation or prosecution.” This shows that while there is a general trend that governments progress towards greater freedoms, they can continue to use laws to suppress the right to dissent. Thus, people continue to struggle to get rid of decades of bad habits that undermine the right to dissent. As I have mentioned in my previous essays, it takes a longer time to reform bad or dysfunctional institutions, especially criminal justice institutions. The Hong Kong Police Force is a great example: once deemed one of the best police forces in Asia, it is now facing a rapid decline, losing trust of people they serve. Midnight knocks on doors or early morning raids on homes and offices were the hallmark of past dictatorships and authoritarian regimes around the world. However, it was not the operational culture of the police force in Hong Kong. Now we continue to see these practices more frequently tarnishing the image of Hong Kong as international economic hub backed by the rule of law.

Judge Gupta reiterated the importance of dissent saying, “There can be no democracy without dissent.” He went even further to state that even the judiciary is not above criticism. He said, “In fact, I welcome criticism of the judiciary because only if there is criticism, will there be improvement. Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed ‘anti-national’.” This leads to the final point I want to make about dissent: often many governments tend to label dissenters as anti-national or traitors. If you look carefully into the protests in Hong Kong, you can see that many of those young people who went on protesting were in fact true patriots: they were exercising their right to dissent to protect the democracy and the rule law in Hong Kong. In fact many of them continue to reiterate that they have been protesting and thus exercising their right to dissent for one fact: their love for Hong Kong.

(Yan Kei, advocate for criminal justice reforms)

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