Habour View: Put down your legal hammers

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Pro-dems and pro-establishment alike are lost when they focus on the law. The only way to save the Basic Law, and rule of law, is to let it go.I am a big policy dork.

Love it. Can’t get enough. I wake up and hit the podcasts while I’m in the shower. Read and listen on the way to Harbour Times news central. Started a think tank. Got into politics at 16 years old, enticed by the moral and practical arguments of free trade. Sexy, exciting stuff for a teenager: policy!

Everyone has their thing. As you get older, you follow it and all the world becomes a nail for your life’s work hammer. And the lawyers and bureaucrats are going to blow this Occupy Central thing if they keep hammering the law at everything they see, scrambling for their nail.

Basic Law, rule of law
As a policy dork, I love Hong Kong’s Basic Law. It is simple and clean, like what America’s Constitution must have been like in the early days, before 74,000 pages of tax code (WoltersKluwer CCH) and 100,000 lobbyists (Thurber) all wangling rules and legislation hither and yon.

Articles 2, 5, 6, 9, 25, 26, 27, 28, 29, 107 and so on and so on. I lean towards the shorter, cleaner ones protecting rights, freedoms and free markets that have fewer than 30 words. Elegant and simple.

Rule of law, and all the good in society, flow from a common understanding and vigourous defence of these elements. For that to happen, there must be a common agreement, a compact among individuals, that these things are fair and applied equally to all (Article 25).

However, as one gets away from the core of these values and into the onerous business of creating actual laws and regulations in accordance with them, one can lose sight of the community compact and its importance. They begin to use the law like a weapon and a shield and it is weakened with every blow it makes and takes. The hammer becomes a hammer of war.

In the past three weeks, my team at Harbour Times have spoken to a wide range of people with varying opinions about what is happening in Hong Kong. We have in our network retired and current police officers, student leaders in the ‘Fab 5’, ‘retired’ gangsters from triads, mainland Chinese academics, venerable pro-democracy freedom fighters, immigrants of all hue and more. We’ve lunched with Basic Law drafters and been tear-gassed with univesity kids. It’s been an odd, emotional three weeks.

One divide in particular strikes me
Speaking with many older people, pro-dems and pro-establishment in leadership positions, they tend to lead with ‘the law’. Basic Law, rule of law, something I can align with, my policy dork flag flying high. They speak with a certainty that if they can argue the point about what the Joint Declaration says or what the Basic Law allows or the Standing Committee permits, then eventually they will find a way forward. Bureaucrats, lawyers and academics alike love their words and rules and have been successful in their careers based on their ability to cleverly interpret and deploy verbiage to good effect. A well-ordered world works by such rules and without them is chaos. They are happy to wage war with those gentle tools and have been doing so for decades.

Your law, not mine
Many people on the streets, however, don’t see how the compact serves them. They see their elders who fight the war of words have lost and will pass with nothing to show for it but successors full of youthful anger. When senior bureaucrats speak of the restrictions of The Basic Law, they hear weasel words to lull them into a morass of legalese from which there is no escape. Many on the streets are educated in the system that venerates the Basic Law – and do not feel it protects, but rather constrains them. There is a growing strain of distrust in many of the institutions that maintain rule of law: the police, the ICAC, a competent and clean bureaucracy.

There must be law and order and a legal, constitutional solution to this impasse. But it will not be reached if it is put first and foremost. The student leaders see such talk as a trap. Their followers see stones and bones thrown to a hungry man – worse than useless.

If rule of law and the Basic Law are used in such a manner, they will lose currency with a whole generation of angry young people. Violence and corruption are only two of the worst fruits that will be borne of sowing those seeds. If our elder, pro-establishment leadership seem at a loss as to how to approach the people (sort of) organising the street, they need to go speak to them and listen – not lecture them on the law before hearing their concerns. With one notable exception, it just hasn’t happened.

Tuesday night’s dialogue was slightly – but only slightly – encouraging in that it did not devolve into a lengthy discussion about what the law does and does not allow. The card was played and the students responded appropriately, telling their opposites what they needed to hear. Everyone knows by now that the student leaders do not command the street. They encourage it, exhort it to good behaviour, listen to it, and, on a good day, represent it. Kind of like real democratic leaders do at their best.

The Administration, even if composed of a host of Ghandis, Mandelas, Lincolns, MacDonalds and Sun Yat-sens, would not be able to address in a day, month or year all the grievances of those in the street. But they must hear and address the real concerns of a people who see the next 60-70 years of their future lives in Hong Kong slipping away.

Slow decline is not an option
Elder pro-establishment figures may be content with a slow decline that will only bite after they have left the earth, even thinking there might be a little gain for being on the ‘right’ side. The same could be said for generally freedom loving older people who can tolerate a little less freedom for a lot of stability in their sunset years. But the young people on the street don’t see that as an option and they have many elderly sympathisers.

Once their concerns about securing their fundamental freedoms and equality of economic opportunity are heard, and some measures are made towards addressing those concerns, only then will the government and allies have a street they can negotiate with and a street that ceases to be a street. Then they will have new allies, or at least a ‘loyal opposition’, in building a more resilient, prosperous Hong Kong.

Masses of educated, articulate, and frankly, genteel young people are risking their personal safety and criminal records that could disbar them from their chosen profession and international travel. They are not doing it lightly, and we must ask why. These will be the defenders of the rule of law when this is all worked out. But only if we get it right.

If a big, rule-of-law, policy dork like me can get it from going into the streets, so can the rest of our leadership. How that translates to the people north of the border is an obvious challenge as their experience does not equip them to play nicely with free people. Hopefully some of them can come and walk the streets and listen too. Someone, somewhere in that chain of command has to listen or this will not end well – if it ends at all. Rule of law can and will be strong again in Hong Kong, but the compact must be restored. Listen, then act, then legislate.

Lawyers, academics, and bureaucrats, put down your legal hammers and open your ears. There are thousands of people who want to believe in the Law, and rule of law, again. Do not fail them.