For any society that has spent a long time neglecting the rule of law, the process of returning to legal order is neither swift nor painless.
China has been stressing the rule of law for more than 2000 years. During the Warring States Period, Qin Xiaogong ascended the throne in 361 BC, actively brought in talents, and enlisted Shang Yang to implement legal reforms. To convince a skeptical public that the law would definitely be enforced, Shang Yang erected a three-zhang-tall wooden pole at the southern gate of the capital, promising ten gold pieces to anyone who could carry it to the northern gate. When no one responded, he increased the reward to fifty gold pieces. Only then did someone step forward, and, true to his word, Shang Yang paid the reward. The episode, now known as “moving the pole to establish credibility,” marked a turning point in public trust toward the law.
Hong Kong’s own journey has been far less linear. In 2019, the city experienced a period of intense upheaval, fuelled in part by the opposition’s embrace of the notion of “Disobedience for Justice”. Benny Tai, a former associate professor at the University of Hong Kong’s law faculty, advocated for civil disobedience as a means to confront the government, arguing that the pursuit of justice could justify unlawful acts. He advanced this argument from within the very institution charged with training the city’s future legal professionals.
Such reasoning, however, does not withstand scrutiny. If the pursuit of justice alone were sufficient to override the law, there would be little reason to study statutes or case law. Legal education would become obsolete. Yet, in any society, there will be those willing to believe convenient falsehoods, and the idea that illegality can be justified by higher ideals briefly gained traction. It was only after the implementation of the Hong Kong National Security Law that the government reasserted control.
Recently, Hong Kong’s National Security Department arrested the father and elder brother of Anna Kwok, a wanted activist living abroad. Authorities allege that Kwok’s family attempted to alter the terms of her insurance policy in order to withdraw a balance of HK$90,000, in violation of Article 90(2)(b) and 90(3) of the Safeguarding National Security Ordinance and Section 159G of the Crimes Ordinance, which prohibit dealing with the assets of absconders. Police have reminded the public that such offenses carry a maximum penalty of seven years’ imprisonment, urging citizens not to test the law.
When the government issued wanted warrants for Kwok and others, critics dismissed the move as futile, arguing that fugitives living overseas were beyond the reach of Hong Kong law. Some mocked the police for “making something out of nothing.” Yet, these individuals continue to advocate for the subversion of state power and to call for foreign sanctions against Hong Kong officials -- actions that, authorities argue, violate the National Security Law. The pursuit of these cases, officials say, is a matter of legal principle.
With the passage of the Safeguarding National Security Ordinance, the government has specifically criminalized the act of assisting absconders in handling their assets. The intent is clear: to freeze the financial resources of those who have fled and to prevent them from receiving further support from relatives. That Kwok would go to such lengths to recover her insurance payout suggests both a degree of desperation and the practical impact of the government’s enforcement efforts.
Some have argued that Kwok’s family members are innocent bystanders. Ultimately, their fate will be decided in court. What is clear, however, is that police are prepared to question the families of fugitives and to warn them against providing support. The willingness of some to risk prosecution may reflect a lingering belief, once common in Hong Kong, that the government would not enforce the law. This “non-enforcement theory,” paired with the idea that breaking the law can be justified by a higher cause, has encouraged some to act with impunity. But such arguments do not hold up in court. Just as a driver cannot escape a parking ticket by claiming to have parked illegally without consequence the day before, past laxity does not excuse present violations.
The opposition, meanwhile, continues to adapt its tactics. Overseas groups such as the European Hong Kong Diaspora Alliance have accused the government of “transnational repression” in its pursuit of fugitives’ families. Yet, as officials point out, the failure to enforce the law would itself undermine the rule of law. Enforcement, they argue, is not repression.
If the global debate is about transnational law enforcement, critics might do well to consider the United States, whose Foreign Corrupt Practices Act allows for prosecution of individuals for alleged corruption anywhere in the world, regardless of whether the conduct occurred on American soil. That, Hong Kong authorities argue, is true extraterritoriality.
As Hong Kong moves from a period of legal ambiguity toward renewed adherence to the rule of law, those accustomed to a more permissive environment will inevitably face discomfort. But, as history suggests, such growing pains may be the price of restoring public trust in the law.
Lo Wing-hung
Bastille Commentary
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