When injustice becomes law: importance of the rule OF law (part 1)
Updated: Nov 10, 2020
Hong Kong (HK) is the frontline in a 'war' : the rule OF law (the law is the King) versus the arbitrary rule BY law (the King is the law).
Ultimately this 'lawfare' war is the global democratic law and order of the United Nations (UN) versus the Chinese Communist Party (CCP).
This is a global 'lawfare' of 'equality before the law' that has been ongoing for thousands of years! Some people may prefer to call this a 'class' war - the 'haves' versus the 'have-nots' - but ultimately it is about the rule OF law versus the rule BY law.
Democracies worldwide, since the end of WWII, have been building their rule OF law and institutions based on UN obligations to further democracy, human rights, civil liberties, sustainability, prosperity and stability, etc.
HK protesters uphold the rule of law and HK's Constitution: the 1984 Sino-British Joint Declaration On the Question of Hong Kong ('Joint Declaration'). This treaty was signed by both China and Britain and lodged by both with the United Nations and remains an international binding Treaty for 50 years until 1 July 2047.
The one-party rule of the Chinese Communist Party (CCP) in China, including Hong Kong (HK), is increasingly desperate to hold on to power using corruption, coercion, violence and its arbitrary rule BY law. CCP is a typical criminal Chinese triad gang - almost all Chinese societies are feudal plutocracies run by triads. CCP does not perform according to its UN or other international treaty obligations.
As exampled by CCP's role in the paradigm shift of the COVID-19 global pandemic, in an increasingly inter-dependent world there is no place in China or this world for CCP's nationalist feudal plutocracy. China under the one-party "people's democratic dictatorship" of the CCP is the world's worst ever totalitarian regime.
CCP's National Peoples Congress (NPC) passing of the National Security Law (NSL) means that since 1 July 2020, 27 years before this treaty is to naturally terminate, China under CCP is in a serious breach of the Joint Declaration.
CCP has a mess on their hands. HK protests in 2019 - 2020 have globally and publicly de-masked CCP showing that China's Emperor Xi Jinping 'has no clothes.' Xi Jinping has overstepped his capability and authority to rule. What to do? To CCP 'face' is EVERYTHING! Denying the truth does not change the facts.
China has a mess on their hands - what to do with CCP!
CCP wants HK the place, not the people! Instead of lawfully upholding the Joint Declaration, CCP and HK government have chosen to use their coercion, torture, terrorism and genocide against HK people.
Using its rule BY law CCP has since 1 July 2020 used the NSL to 'weaponize' HK's judiciary making its rule BY law superior to the rule OF law! HK's Judiciary is one of CCP's primary 'weapons' it uses against the majority of HK people who are protesters upholding the Joint Declaration. They have also been termed 'freedom fighters' by international human rights organisations.
The 'unholy trinity' of the corrupted absolute power of the HK police, judiciary and prisons (Correctional Services Department) are all under the direct control of the CCP to ensure the quick demise of what little currently remains of HK's human rights, civil liberties, prosperity, stability and economy.
Human Rights Watch (HRW) says CCP's strategy is to undermine global human rights!
Faced with serious ongoing accusations of human rights and other abuses spanning decades, will the democratic alliance lead by America hold CCP accountable and uphold the rule OF law globally, including in HK? Or will the people of all democracies on Earth have to one day bend their knees and kowtow to CCP's rule BY law?
Many nations are now realising that to decouple CCP from China, the head needs to be cut off the snake.
It is not what CCP and HK government says that matters - it is what it does that counts! We must consider the facts and seek the undeniable truth - which in the case of the rule OF law is the exact opposite of the 'official' narrative of the HK government!
On Tuesday 1 September 2020 Chief Executive (CE) Carrie Lam publicly announced that HK has 'no separation of powers'. Carrie Lam is correct in saying that HK has no separation of powers because HK no longer has the rule OF law!
Carrie Lam's statement is of course completely at odds with HK government's 'official' position which is that HK still has the rule OF law!
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Mission of the Judiciary
To maintain an independent and effective judicial system which upholds the rule of law, safeguards the rights and freedoms of the individual, and commands confidence within and outside Hong Kong
Mission of the Judiciary Administration
To support the upholding of justice and the rule of law
To provide quality services
To maximise synergy through teamwork
To strive for creativity and improvements
HK's multilateral agreements are in force and applicable to the Hong Kong SAR (HKSAR) includes ICCPR, ICESCR, CERD, CAT, CRC, etc.
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"The Judiciary of the Hong Kong Special Administrative Region is the judicial branch of the Hong Kong Special Administrative Region. Under the Basic Law of Hong Kong, it exercises the judicial power of the Region and is independent of the executive and legislative branches of the Government. The courts in Hong Kong hear and adjudicate all prosecutions and civil disputes, including all public and private law matters.
It is fundamental to the Hong Kong legal system that members of the judiciary are independent of the executive and legislative branches. The courts of law in Hong Kong comprise the Court of Final Appeal, the High Court (which includes the Court of Appeal and the Court of First Instance), the District Court, the Magistrates' Courts, and other special courts and tribunals set up by law. The Chief Justice of the Court of Final Appeal is head of the judiciary and assisted in his administrative duties by the Judiciary Administrator. A bilingual court system in which Chinese, English or both can be used was put in place, in accordance with the requirement of the Basic Law."
HK's Rule OF law
In this blog we are making references to the laypersons book "The Rule of Law" by UK's most eminent of judges, Lord Bingham, Penguin Books.
"You may say I am a dreamer, but I'm not the only one", John Lennon (1971).
WTPOHK value highly the ideals of justice and the rule of law.
Aristotle (384-322 BC) is considered to be one of the earliest proponents of the rule of law when he wrote 'It is better for the law to rule than one of its citizens' and later wrote 'so even the guardians of the laws are obeying the laws'.
The UK's Magna Carta of 1215, written nearly 800 years ago, says:
"39. No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
40. To no one will we sell, to no one deny or delay right or justice."
'Wherever law ends, tyranny begins', John Locke (1690).
'That in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other,' Tom Paine (1776).
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Under International Covenant of Civil and Political Rights (ICCPR) Article 5 States who have signed and ratified ICCPR must comply 100%.
ICCPR Article 25 "Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country."
The United Nations Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. It was accepted by the UN General Assembly as Resolution 217 at its third session on 10 December 1948 at the Palais de Chaillot in Paris, France. UDHR "Preamble:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,"
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In his book "The Rule of Law" Lord Bingham suggests (page 8) "the core of the existing principle [of the rule of law] is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts."
Under the Joint Declaration HK's rule OF law, an independent judiciary and the common law are guaranteed!
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Since 1 July 2020 HK's rule OF law has illegally been replaced by CCP's rule BY law!
We can envision HK Tourism Board employees greeting arrivals at HK's airport saying 'Welcome to communist HK - once we were Asia's World City - now under CCP HK is proudly just another dirty city in the PRC! It is mandatory in HK that anyone with luggage arriving at our airport must give us their full contact details, download this app for our tracking, and a swab for COVID-19 testing! Here's a bandaid and a panadol in case you meet a policeman with an arbitrary baton motion. Enjoy your stay in communist HK!'
According to pro-CCP English language HK media SCMP on 30 October 2020 HK's ranking in a global law and order index drops from 5th to 82nd! The tongue in cheek scenario above may not be so far from reality in the not too distant future.
China under CCP is now in serious breach of the Joint Declaration. On 30 July 2020 the Chinese Communist Party (CCP) National Peoples Congress (NPC) illegally annexed Hong Kong (HK) when it passed a National Security Law (NSL) for HK.
Before NPC passage of the NSL there was no HK public consultation, there was no release of a proposed draft. After passage there was no official English language translation. No explanation was offered by NPC as to why the NSL has breached HK's Basic Law and its Constitution the Joint Declaration.
HK's rule OF law under the Joint Declaration has now ended - there is no Joint Declaration, no rule OF law. CCP policy of 'one country, two systems' has been replaced with 'one country one system'!
CCP has weaponized HK's judiciary: HK's rule OF law has ended!
The enactment of the NSL was totalitarian CCP exercising its own brand of tyranny using its rule BY law to take full control of HK's rule OF law.
HK now has a branch of mainland China CCP police officers operating under CCP's rule BY law acting alone without supervision nor control of HK government and its rule OF law.
HK's rule OF law has ended.
The next level of oppression and tyranny by CCP and HK government in HK has already begun as exampled by:
For decades roughly 60% of HK people have supported pro-democrat politicians; roughly 30% support pro-CCP parties. During HK protests 2019 - 2020 many pro-CCP supporters switched to supporting pro-democrats. HK Chief Executive Carrie Lam has, at most, the support of only 11% of HK people.
Lord Bingham wrote (page 9) '[But] belief in the rule of law does not import unqualified admiration of the law, or the legal profession, or the courts, or the judges. We can hang on to most of our prejudices. It does, however, call on us to accept that we would very much rather live in a country which complies, or at least seeks to comply, with the principle I have stated than in one which does not. The hallmark of a regime which flouts the rule of law are, alas, all too familiar: the midnight knock on the door, the sudden disappearance, the show trial, the subjection of prisoners to genetic experiment, the confession extracted by torture, the gulag and the concentration camp, the gas chamber, the practice of genocide or ethnic cleansing, the waging of aggressive war. The list is endless. Better to put up with some choleric judges and greedy lawyers.'
If CCP wishes to keep 'face' and remain relevant CCP must answer the UN!
The UN communicated with the CCP through its special rapporteurs on HK's National Security Law on 1 September 2020. In view of the NSL they specifically asked CCP to:
Explain how the legislation is compatible with the China's Government obligations under articles 2,14, 15, 17, 19, 20, 21, 22 of the ICCPR and articles 11, 12, 19 and 20 of the UDHR and how it may remediate the aforementioned inconsistencies with international human rights standards enshrined in the Act.
Provide information on how the definitions of secession, subversion and collusion with a foreign country or with external elements to endanger national security are compatible with the principle of legal certainty established under the ICCPR.
Provide information on how the Government of China intends to enforce the extra-territorial jurisdiction of the legislation as enshrined in articles 36, 37, 38, and 55 to ensure compatibility with the ICCPR.
Provide information on how the human rights commitment set out in article 4 of the legislation will be enforced in practice.
Identify the positive measures and oversight provided by the Government of China on the excise of the powers now enumerated in the legislation.
CCP has never replied to the UN!
CCP has never replied to the UK with whom it signed the Joint Declaration.
CCP has never given to HK people their full rights under the Joint Declaration. CCP must uphold the Joint Declaration!
In our next blogs in this series, we will address how the principles of the rule OF law are being undermined in HK.
Please see our blogs:
These UN letters to China on HK protests are significant and relevant: