English speech by the Hon. Dennis Kwok (Legal/Civic Party), Legco 16 Oct. 2014

Thank you Mr. President.

Mr. President, we are gathered here today to debate the handling of the protests by the Hong Kong government and the Hong Kong police in a series of events which we have witnessed in Hong Kong over the past weeks. Many Hong Kong people were in fact motivated to come out to join the protests precisely because they have seen the way the police handled the protesters. The very visual images that we have seen on television, regarding the use of tear gas again and again on peaceful demonstrators armed with nothing but their umbrellas to protect themselves, have not only been seen on television screens in Hong Kong, but around the world. So have the audio recordings of protesters pleading with police officers, “What have we done to deserve this?”

Some of my colleagues across the aisle have since come out to defend the police use of tear gas, and say that the protesters deserve to be tear-gassed or pepper-sprayed. Some of them say that the protests are out of control and therefore constitute a great threat to public order. Some say that the protests are so well-organized that they pose a great threat not only to public order, but to national security. Regardless of the merits of those arguments, which I will not try to address, what we have here in Hong Kong is the rule of law, and what we’ve seen: the use of force by the police and the question of whether that was excessive.

A police officer’s power to disperse a public gathering, which he reasonably believes is likely to cause or lead to a breach of the peace, is derived from Section 17(2) of the Public Order Ordinance. Under that Section, a police officer “may give or issue such orders as he may consider necessary or expedient”, but may only “use such force as may be reasonably necessary” to disperse the public gathering. A similar restriction on the use of force greater than is reasonably necessary for the purpose of dispersing a public gathering can be found in Section 46(1) of the same ordinance.

President, the central issue then is whether the use of the tear gas was a degree of force greater than was reasonably necessary in the circumstances at the time. In determining this issue, the courts will likely apply proportionality reasoning and examine whether there are less intrusive means to acheive the same objective. The Undersecretary for Security gave the following answer to the question asked in this Council about the possible use of tear gas against Occupy Central protesters: “When there is a breach of the law, the police would first of all advise the persons concerned to comply with the law, warnings would be given where necessary; when the situation did not improve and there was a need for the police to take resolute action, clear instructions and warnings would be given, and adequate time would be allowed for the persons concerned to comply with the instructions. Regarding the use of force, it would not be used unless it was really necessary, and the force used would be at a minimum level to achieve its purpose.”

From the above, Prof. Simon Young from the University of Hong Kong’s Faculty of Law derived a list of factors relevant to assessing whether it was reasonably necessary for the police to use tear gas on that day, which he has described in detail in his article. In summary, Prof. Young said that the scenes that we have seen from the TV coverage show that:

1) No clear acts of violence or rioting that necessitated the use of tear gas suggested an excessive response on the part of the police.
2) Repeated uses of tear gas appeared to surprise protesters, suggesting that either an inadequate warning was given, or insufficient time was allowed by the police for the protesters to comply.
3) Throwing of tear gas canisters directly at protesters or into crowds suggest that not the minimum level of force was used.
4) The quick regathering of protesters after momentary dispersal suggests that the tear gas achieved very little and certainly nothing that less intrusive means could not have achieved.

Prof. Young therefore concluded that the Hong Kong Police have more than a clear case to answer to justify the use of force on the protesters.

So using the Undersecretary’s analysis, based on the facts we have seen, the police did not use the minimum force as necessary in the circumstances. One may well wonder whether I’ve been speaking at the wrong venue, that I should have been delivering this speech at the High Court and not in this Council. Yet I believe there is no better place for me to speak of such relevant laws, and the need for the rule of law, at this critical juncture. Right when we are pondering the question of constitutional reform and how to build a democratic government accountable to the Hong Kong people, we must remain vigilant in protecting the rule of law, for without the rule of law, all our democratic aspirations would mean nothing.

But just as the Hong Kong Bar Association has said in its response to the White Paper, “Respect for the rule of law, as understood in Hong Kong and the communities of civilized nations, means far more than merely doing things according to the law (依法辦事), or governing according to the law (依法施政). It includes proper self-restraint in the exercise of power in a manner that gives proper weight and regard to the importance of the independence of the judiciary.” Proper self-restraint in the exercise of power in a manner that gives proper weight and regard to the importance of the independence of the judiciary: this can be summarized in four Chinese words: 依法限權.

The rule of law demands not only that the government, including the police, abide by the law, but also that the government exercises self-restraint in the exercise of its power. Yes, under the current legal framework, the government and the police have immense power in regards to how it handles the current crisis. But with great power comes great responsibility. Would it be in violation of any law, for example, if the government refuses to engage in any negotiations with the protesters, and simply cleared all the Occupy sites overnight? Of course not. Would it be in violation of any law for the government to refuse to budge from its legalist, strictly unassailable position of sticking to recent decision of the Standing Committee of the National People’s Congress on constitutional reform and forcing the Hong Kong people to accept their version of “universal suffrage”, as being nothing more than a voting machine rubber-stamping candidates pre-selected by the central government? Strictly speaking, from a purely legalistic point of view, yes, they are probably entitled to do that. But the rule of law demands much more that simply abstention from violating relevant laws. Again, it demands self-restraint on the part of those in power in order to have due regard to the importance of the judiciary, especially to the responsibility of the judiciary in protecting the rights and freedoms of the people guaranteed by the Basic Law.

And I will pause to say that out of this whole incident that we have seen in the past weeks, perhaps the shining example of the rule of law in Hong Kong was when the High Court released the student leader [Joshua Wong] on a writ of habeas corpus within 48 hours.

The rule of law demands that those in power refrain from using the law as a means of oppression. It demands that they, instead, make laws to constrain themselves from existing unbridled power (依法限權), in order to have a due regard to the rights and freedoms of the people. And isn’t this what this whole constitutional reform debate is about, Mr. President? Not only whether the central government or the NPCSC can make the decision it did ruling out genuine universal suffrage, not whether the Hong Kong government can refuse to negotiate anything other than what is constitutionally permitted, given the wording of the Basic Law and the NPCSC decision, but rather whether the government should exercise self-restraint in the exercise of its power in deciding the future of our political system–whether the government, when deciding the future of our political system, should exercise self-restraint by giving due weight to the rights and freedoms of the Hong Kong people, particularly the right to vote and to be elected at genuine elections which reflect the true expression of the will and aspiration of the Hong Kong people. And this is a decision not just for the Hong Kong government, it is a decision for the Central People’s Government of the PRC to make.

A quarter of a century ago, the central government was at a crossroads. The central government had an opportunity to take heed of the demands of the students gathering peacefully at Tiananmen Square and take a big step towards liberalization and democracy. It had an opportunity, yet it chose to ignore it. In fact, it did not simply ignore that opportunity, it chose to actively kill off that opportunity by brutal suppression. The Central People’s Government chose to kill off that opportunity twenty-five years ago, apparently because developing China’s economy is more important than political reform. Many people have since tried to justify the crackdown by pointing to the annual growth of GDP, by arguing that the lives of people who died at Tiananmen Square in the summer of 1989 were well worth sacrificing in exchange for the better livelihood of the millions who have benefited from the economic growth of our country.

Yet twenty-five years later, with China being the second-largest economy in the world, opportunity has presented itself again in the most well-run city in our country. Whether the present administration follows the footsteps of its predecessors, I do not know, and I hope not, but if I may take the words of Theodore Parker, whose sermons have been an inspiration for those who followed Martin Luther King: “Look at the facts of the world, you see a continual and progressive triumph of the right. I do not pretend to understand the moral universe: the arc is a long one, my eye reaches but little way. I cannot calculate the curve and complete the figure by the experience of sight. I can define it by conscience: but from what I see, I am sure it bends towards justice.” The arc of the moral universe is long, but it bends towards justice.

I take this opportunity to urge the government and those in power to make the right decision and stand on the right side of history, alongside the students who are gathering outside this Council today as we speak, together with the rest of the Hong Kong people, and the people in this nation. Thank you, Mr. President.

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