Zhang Xiaoming has declared that the decision of the Standing Committee of the National People’s Congress (NPCSC) to disqualify four Legislative Council members was a “legal norm”. The so-called “decision” of the NPCSC is merely an order from on high, like an imperial decree in ancient China. Applied in modern times, the order takes the form of a law. It is a law that takes effect immediately and can disqualify legally elected lawmakers. The law only has to be announced and does not need to be enacted through a legal procedure. It is even above the Basic Law, which was promulgated by the NPC after formal consultation and deliberation, as if it is a super law. If the decision is a law, it is no wonder that Beijing officials show great respect for “the rule of law” and vigorously promote the notion of “a country governed by the rule of law”.
At a recent seminar, Professor Benny Tai Yiu-ting said Hong Kong was caught between two sets of concepts of rule of law. One is an authoritarian rule of law belonging to the Chinese Communist Party (CCP), which the government uses as a tool. The other is the rule of law Hongkongers are familiar with, which uses the law to constrain power. The CCP way, regardless of how it is called, is actually dictatorship and authoritarianism. There is no need to argue whether the NPCSC’s decision is a law or not. It is better to ask whether the decision, or law if you like, has any legitimacy, and whether it can convince people.
Illegitimate and severe criminal laws are unacceptable and cannot make people comply with them willingly even if they are branded as “laws”. They only elicit hatred and people will regard them as the authorities’ tool to oppress them. Thus, the notion of the rule of law is like the Emperor’s New Clothes, and ideals are replaced by curses that encourage resistance.
Under a free and democratic system, one can say people are generally willing to be regulated by a parliament they elect and by laws passed through legitimate procedures. The parliament and the laws are therefore have legitimacy, until people raise doubts about them, overthrow or modify them. The more democratically elected a parliament is, the more fair the procedures are, and the more institutionally recognized and legitimate the laws are. Still, the legitimacy is superficial. Every outdated law may lose its original legitimacy over time. When an old law is invoked, people may question whether it can be enforced legally even if it has not been abolished. If people challenge its enforceability and succeed, the law will become useless even if it does not get abolished. Institutional recognition is an important factor ensuring people observe the law and therefore securing stability of a place. When such recognition is weakened, no amount of laws getting passed will bring stability.
Under a dictatorship, centrally controlled organs and procedures mean decisions from on high can be passed any time, but still such decisions need to be legitimate. Otherwise, why do the authorities have to go to great lengths to promote their decisions and stifle voices of dissent so as to create an impression that the decisions are accepted by all? The problem though, is that impression of this kind will not be so easily created as long as free-spirited people refuse to be silenced. The enactment of the Basic Law, the interpretation of the law, the disqualification of legislators upon a court ruling in the past all involved the central government obtaining a certain measure of legitimacy through a legitimate system for an otherwise illegitimate decision. Without the gestures, the true color of autocracy is revealed, and the autocratic regime will find it more difficult to prevent challenges and will become unstable. Just when you think you are at your strongest, you may actually be at your weakest.
(Margaret Ng Ngoi-yee is a barrister, writer and columnist in Hong Kong. She was a member of the Legislative Council of Hong Kong from 1995-1997; 1998-2012.)
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