我們守護的公義,不是一個已崩壞的象徵 ——一群法律系學生及舊生回應大律師公會2019年12月9日之聲明

(Please scroll down for English version) 

目睹香港法治的崩壞,我們一班來自各大法律系的學生及舊生尤其痛心。

衝擊法治的不是示威者,不是汽油彈——是政權。司法獨立?我們都清楚,《基本法》最終的解釋權屬中央政府,這是香港一向在政治角力中被任意擺佈的結果。然而,我們的政府從來沒有嘗試在框架內捍衛哪怕只有一點的獨立性,反而主動邀請中央干預:1999年,香港政府基於不實的人口估算,提請中央釋法,推翻終審法院有關港人內地所生子女享有居港權的裁決。先例一出,行政干預司法的洪水一發不可收拾,香港法院頻頻向政權彎腰。由無限期擱置普選立法會以及行政長官,到以解釋宣誓要求為名褫奪民選立法會議員議席,人大釋法解決政治問題已成常態,香港的獨立司法管轄權早已名存實亡。

獨立檢控?《基本法》第六十三條定明刑事檢控工作應「不受任何干預」,可是律政司一手掌握檢控權,對執紙皮的婆婆加以嚴懲,卻對私相授受的高官大肆縱容。一邊廂,以官職牟己利、涉及重大公眾利益的案件往往不了了之:梁錦松偷步買車、梁振英收取UGL五千萬等案中,律政司均以沒有足夠證據為名含糊以對,至於搜證如何進行、調查過程是否獨立無人知曉。再者,現任律政司司長鄭若驊沒有申報其私人執業的仲裁案,涉嫌公職人員行為失當又由誰人追究?另一邊廂,對於政權的異議者律政司可謂有權用盡,誓要殺雞儆猴:時任律政司司長袁國強將已服刑的雙學三子打入牢籠,以刑罰覆核為名,行政治打壓之實。 早前更有檢控官發表公開信,揭露鄭若驊在公眾活動事件上「主要考慮政治因素」,並不理證據是否足夠、是否合乎公眾利益,只堅持檢控,卻置檢控守則於不顧。

更甚者,市民尋求司法公正的權利可有被保障?在標榜法治為核心價值的香港,多少無權勢者被拒之法庭門外?每一日,無數基層工傷工友無從理解索償程序,亦連法律援助的邊亦觸不及。沒律師代表的平民百姓經常缺乏資源,碰上繁複的法庭程序需自己摸索,卻被斥責浪費法庭時間。近日,濫捕濫告的執法人員連上庭的文件也沒準備好便將眾被告帶到庭上,完全缺乏專業態度。不少酷刑聲請者縱使能在語言不通、社會排斥、法例歧視的重重阻礙下仍摸索到法律途徑,司法機構卻仍缺乏對這些人仕之背景之理解,亦不管他們在精神狀態不佳下無法給予證供的問題,卻選擇性著眼於那些有利於會施加酷刑、迫害之國家的背景資料,從而進行不公的裁決。既然諸如以上例子屢見不鮮,公平審訊從何談起?無論民事申索還是與體制抗衡的司法覆核案中,市民必須先熬過無了期的等待,才能得到遲來的公義。除此之外,梁天琦一案中法庭裁定政治動機並不屬減刑因素——此等判決完全不合時宜,亦顯示了香港法律與人情、政治理想間存在彷彿無法逾越的、令人沮喪的鴻溝。以上不公無日無之,試問香港政府又做了什麼好使市民能夠透過法律爭取自己應有的權利?

再看今次反送中運動。香港政府無視一國兩制下的司法差異硬推送中惡法,激起群情洶湧的反修例浪潮。人民的聲音卻換不來政府足夠的聆聽和讓步,反而拉開暴力鎮壓的序幕。先不論由2016年起,港府將殖民時代鎮壓人民的,刑期可高達十年的暴動罪廣泛應用於對民主運動的打壓有何深意,警察不合符比例、不合情不合理的暴力鎮壓,不單止得不到法律的制裁,甚至獲得制度護航。裁判官詮釋一名十五歲少年背包裡的雷射筆為攻擊性武器,認為他有意圖以雷射筆照射警員或他人,只因他承認參與了一埸合法的遊行並攜有護膝等防禦性裝備——試問這符合毫無合理疑點的審訊標準嗎?警察執法時拒絕出示委任證,法庭卻以保護警員身份為由頒布臨時禁制令禁止公眾查閱選民登記冊或非法公開他們的個人資料和相片,完全無視現行制度根本無法制衡警暴的現實。

司法機構固然需要遵從已建立良久的法律原則,但令人憂心的是,某些法官在審議示威案件時,屢次加入自己的個人意見:一名13歲女生被判侮辱國旗罪時,該裁判官批判她焚燒國旗的行為,更「教育」她要「尊重自己的祖國和民族」。早前有三名青少年於今年8月29日深水埗電影放映會後被捕,裁判官在他們沒有被警方落案起訴的情況下批出保護令,把他們關押於屯門兒童及青少年院,原因為三人在當晚兵荒馬亂之際仍沒有離開現場,證明他們不能照顧好自己,而父母亦無能力監管。這些評論引起大眾質疑:審議受爭議的公眾事件,本應中立的法官是否正滲入自己的政治立場?香港法庭在行使其司法權之時本已舉步艱難,而檢控權在律政司手上更代表著若檢控官只著眼示威者而放縱執法人員,法庭根本無從介入。再者,政府動用緊急法頒布蒙面法,規限範圍之廣完全不符比例,嚴重侵犯市民表達政治訴求的自由。高等法院基於充分的法理基礎裁定緊急法違憲,中共黨媒卻不禁撕破嘴臉,誇下海口地批判法官僭越司法權——而更早前,中聯辦主任張曉明竟聲稱香港特首應超然於司法。「司法已死」四個大字,不是什麼污衊,而是我們及一眾香港人面對著法治崩解所發出的最後一聲絕望吶喊。

如此種種,何不令人髮指?我們卻在這個背景下,屢次讀到大律師公會罔顧現實的聲明。「司法機構正是掌管公義及維護法治的主要守護者,以及保障市民基本權利和自由的機構。」我們懇請各位大律師三讀聲明內這一句子:放在香港滿目瘡痍的現況下,這還真確嗎?還有說服力嗎?還有認受性嗎?若大律師公會只看見示威者違法,看不見違法違紀的執法人員仍逍遙法外;只看見死物的毀壞,看不見制度的暴力——這絕非不偏不倚,實是助紂為虐。

作為一眾正在或曾修讀法律的學生,我們深知本科在市場主導的課程編排下,以商業服務為重,輕視對公義的追求和法制的批判。但正因為這些限制,我們學懂要在社會動蕩之時更與群眾同行,盡量在實踐公義與反思之中探討法治的真實意義。事實上,在反修例運動之初,我們樂見大律師公會善用自己的專業,為大眾拆解修例的迷思並傳播正確的法律觀點。公會亦其後反駁黨媒有關香港司法管轄權的言論,此等氣魄令人欣賞。所以我們希望大律師公會作為社會上擁有資源與話語權的一群,能更肩負起守護及釐清法治精神的責任,在司法獨立受到嚴重挑戰之時直言無諱,以免「法治」成為一場空談,甚或淪為政權打壓人民的藉口。是以我們期望大律師公會往後的聲明能更高瞻遠矚,不只看到並斥責某些人對待法院死物的暴力,更能譴責促使這些暴力背後的政治制度弊病,否則任何聲明只是膚淺的、離地的陳腔濫調。

「強暴犯可能是你 / 強暴犯就是你 /  警察、法官、國家、總統,你們就是強暴犯」讓智利人民反性暴力的抗爭歌曲,成為我們的警醒。

一群為香港法治崩壞而痛心的法律系學生及舊生

 

There is More to Justice than its Shattered Visage

Statement from current students and alumni of the Law Faculties of the Universities of Hong Kong in reply to the Hong Kong Bar Association’s statement dated 9.12.19.

We are students and graduates of the law faculties of a number of universities who have come together to mourn the loss of Hong Kong’s rule of law.

It has fallen, not at the hands of protestors, not by petrol bombs – but by the tyranny of our Government. It has always been known, that under the Basic Law, the power of final interpretation was a captive of the Central Government, and that has always been the case because Hong Kong has always been powerless in the strife between nations. But our Government has never attempted to defend what little independence it had within the framework. Far from that, it has invited the Central Government’s interference into our system at every turn: in 1999, on the pretext of completely duplicitous immigration estimates, it invited the Central Government to interpret the Basic Law, overthrowing the Court of Final Appeal’s judgment regarding whether children of Hong Kong citizens may enjoy the right of abode in Hong Kong. The precedent being set, a deluge of Executive interference was soon to follow. It became custom for the Executive and the Central Government to interfere, and for the courts of Hong Kong to oblige. From abandoning plans for true universal suffrage of the Legislative Council and the Chief Executive to disqualifying Legislative Council members under the transparent pretext of interpreting oath requirements under the Basic Law, the Standing Committee of the National People’s Congress has wielded its power of interpretation as its chosen legal weapon to bludgeon political opposition into non-existence. Stripped of its substance, the independence of Hong Kong’s Judiciary became a mythical creature, existing in name only.

What of prosecutorial independence? Under Article 63 of the Basic Law, prosecution affairs are said to be ‘free from interference’. But what the Department of Justice has chosen to do, with its complete control over prosecutions, is to pursue harsh punishment of a harmless old woman collecting cardboard on the streets; all the while indulging the bottomless greed of our senior officials. 

On the one hand, it has shirked from the prosecution of officials who had profiteered from their positions in cases involving great public interest: Antony Leung was never prosecuted in court for his purchase of a saloon days before he increased taxes on car registration; CY Leung was never prosecuted for his receipt of HK$50 million from UGL. In both cases, the Department of Justice cited an insufficiency of evidence, but we will never know what that insufficiency was because the public is not entitled to know how that evidence was gathered, and because the process of investigation is too opaque for anyone to say that it is independent. When our incumbent Secretary of Justice, Theresa Cheng, has failed to declare that she continued to work on arbitration work from her private practice notwithstanding her public duties, an act which may amount to misconduct in public office, who do we go to in order to seek justice and how do we hold people like her to account? 

On the other hand, our Department of Justice has been only too eager to use every weapon in its arsenal to crush all who dare raise their voice against the Government. In the name of deterrence, it is determined to terrorise the opposition by making examples of activists. Ostensibly asking for a review of sentence, the then Secretary of Justice, Rimsky Yuen, sought to punish the three activists, Joshua Wong, Nathan Law, Alex Chow, for no other reason than the political views they held, after they had served their original sentences. His successor, Teresa Cheng, was condemned in an open letter issued by prosecutors in July in which they revealed how, exhibiting a cavalier contempt for the Prosecution Code and the public interest, she had pressed onwards with prosecutions of protestors and others arrested at public events on the sole basis of political considerations.

We have not even begun to address the right of every citizen to have access to justice. In a place which purports to make the rule of law one of its core values, how many of the weak and powerless have been stopped outside the gates of our courthouses? Every day, there are workers from the grassroots, who, being injured at work, cannot even make it to being granted legal aid, not understanding the legal procedure of claiming against their employers. Without being equipped with any of the necessary knowledge or resources to fend for themselves in court, they are left to contend with the unfamiliar and complicated niceties of court procedure. Very often, they are castigated for wasting the court’s time, even as the enforcers of the law, abusing their power of arrest and abusing their power to prosecute, are allowed to come to court without the proper papers. Asylum seekers, even when they manage to reach the right legal avenues amidst discrimination by the law, discrimination from society, and discrimination on the basis of language, are met with institutions which do not understand their background and are uninterested in their plight. Ignoring their mental distress and dubious fitness to give evidence, these institutions press asylum seekers for information while favouring the very countries they are fleeing from.  These cases are becoming so ubiquitous that we as students of the law are forced to ask: where does a fair trial begin? Whether in simple civil matters or in judicial reviews that challenge the system of government itself, citizens must endure an endless wait for justice that is always late. Apart from the above, the trial of Edward Leung for rioting has shown that Hong Kong courts are unwilling to recognise political motive as a mitigating factora disappointing and anachronistic interpretation of the law divorced from Hong Kong people’s moral and political ideals. And it is in this context that we ask: what – if anything – has the Hong Kong Government done to facilitate access to justice for Hong Kong people? 

The Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 was premised upon a willful ignorance of the long-standing differences between Hong Kong and the Mainland’s judicial systems. By its refusal to listen to contrary opinion, our Government managed to incite public anger of such a magnitude that it became a movement unto itself. Yet the voice of the people not only went unheard and unheeded, it was met with repression. The fact is that, putting aside the Government’s designs in reviving the colonial era rioting charge which by itself carries as much as 10 years in prison, the disproportionate and indeed, irrational use of force by the police force for the last few months has not only not been corrected by the courts, it has come to receive a degree of judicial acquiescence. In one case, a magistrate took the view that a laser pointer found in the backpack of a fifteen-year-old boy constituted an offensive weapon, and further concluded, from the fact that the boy carried knee pads, that he intended to use this ‘offensive weapon’ against police officers or others. Whatever has become of that high standard of proof – beyond reasonable doubt – that was once required of every conviction? When police officers refused to show their warrant cards while purporting to carry out their duties, the courts were willing to grant an interlocutory injunction prohibiting members of the public from inspecting the registers of electors/votes or publicising photos or personal information of police officers without lawful excuse. Is it far-fetched to suspect that the Judiciary was applying double standards in what was supposed to be a fair adjudication process? As such, were the arsonists’ acts, as the Bar Association as quick to condemn, merely wanton attacks upon a symbol of justice? Or should they not rather be seen as a wake up call as to the dismal state into which our justice system has fallen?

Judicial bodies must of course abide by established legal principles, but what is worrying is the demonstrable willingness of some judges to air their political views in the judicial arena. In the trial of a 13-year-old girl for desecrating the Chinese flag, the magistrate in charge launched into a diatribe against her for burning the flag by which she sought to ‘educate’ her to learn to ‘respect her own nation and country’. When three teenagers were arrested after a screening about the anti-ELAB movment in Sham Shui Po on 29 August, the Magistrate issued a protection order for them to be remanded at the Tuen Mun Children and Juvenile Home, despite there being no prosecution against them, because he took the view that in failing to flee the chaos that ensued after the film ended, the three had shown that neither they themselves nor their parents were capable of taking good care of them. These unwarranted and indeed unsolicited remarks sow suspicion in the mind of the public: it is the suspicion that when dealing with public events that are the subject of controversy, supposedly independent judges would not indeed be impartial. 

It is true that in the Hong Kong of today courts have perilously little room for manoeuvre: the power of prosecution lies with the Department of Justice – if prosecutors only target activists and not law enforcers, there is nothing the courts can do. More recently, on the Government’s enactment of an anti-mask law under the Emergency Regulations Ordinance, not only was the mask ban itself entirely disproportionate and a serious abrogation of the right to freedom of expression, there was also ample legal basis for the High Court to declare the Emergency Regulations Ordinance unconstitutional, which it did. But that act was to be followed by a brazen campaign on the part of state media to frame Hong Kong courts as the usurpers of Executive authority. And indeed, earlier on, Zhang Xiaoming as the Director of the Liaison Office had made the shocking claim that Hong Kong’s Chief Executive should be above judicial oversight. When we say, ‘The independent Judiciary is dead’, this is not to besmirch the reputation of our courts, but is the last desperate cry of Hong Kong people that have seen its rule of law drawn and quartered in front of their eyes.

Each and every one of these developments should be cause for outrage. Yet, against this backdrop, we have time and again read statements from the Bar Association that can only be described as surreal: ‘(The Judiciary is) the very institution which administers justice, protects the rule of law as its key guardian, and upholds fundamental rights and freedoms’. We beseech you, as barristers of Hong Kong, to consider and consider again these words. Are they, after what has happened to Hong Kong, plausible? Are they persuasive? Are they true? 

If the Bar Association finds it hard to think of anything more corrosive to the rule of law than the vandalism of courthouses, it is clearly not thinking hard enough. Violence against courtrooms has happened because, for those it has failed, the courtroom no longer symbolises justice. 

If the Bar Association refuses to see the brokenness in our system and the awryness of our laws, unless it finds the heart to condemn the cause of protest violence which is the violence emanating from our system, it will be remembered as no more than an accomplice of the oppressor.

As past and present law students, we are keenly aware that the curriculum from which we learnt was and is driven by market demand, heavy on commercial services, and light on the pursuit of justice. It is also, regrettably, slow to judge where our system has gone wrong. But it is these limitations that in these times of turmoil spur us to take a more proactive role in society, amidst the masses, to realise and to reflect upon the meaning of the rule of law. We are grateful to the Bar Association for its role in voicing out against the NPCSC’s interference into Hong Kong independent judiciary in a former declaration. However, could the Association not have done more, said more in the 9 December declaration? Was the physical destruction of our courthouses, an already corroded symbol so much to be condemned? If not justified or excused, should not such protesting acts at least be understood, with empathy? 

The rapist is you/ It’s the cops/ The judges/ The state/ The president. 

May the lyrics of this song of the Chileans against sexual violence serve as a reminder not only to the Bar Association, but also as a general warning to all of us. 

— A group of past and present law students of Hong Kong 

Mourning the Late Rule of Law in Hong Kong

 

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