The rule of law
A reiteration of the importance of the rule of law
Recent events have underlined the importance of this fundamental principle to me: the rule of law must be protected and cherished. If you’re a non-legal reader, you might ask, What is the rule of law? Fortunately, the Rule of Law Education Centre has a very good page explaining the rule of law, as well as the following diagram:
I am passionate about discussing legal matters with non-lawyers and educating people about the law, because I believe that it’s important to have an understanding of the law, as part of my broader commitment to the rule of law.
No one should be above the law, and governments should be subject to the law as much as citizens. It should not matter who you are.
It always astonishes me how ready people are to undermine the rule of law for a cause they support. It’s important to remember that what’s sauce for the goose is all too often sauce for the gander.
If you erode the rule of law, you run the risk that the law can later be used against you, when others with whom you disagree take power. Always keep in mind that the tool you grasp now can be seized by those who hate you, and used against you.
On 3 July 2023, the Hong Kong Police issued Arrest Warrants against eight exiled pro-democracy activists, two of whom now live in Australia. One of those people was my good friend Kevin Yam, whom I have known since my first week of law school.
What, you may ask, was Mr Yam’s crime? He met with Australian Members of Parliament to discuss the situation in Hong Kong, after he was forced to flee in 2022. And then, on 11 May 2023, he gave testimony to US Congress on how the rule of law and democracy have been eroded in Hong Kong.
That alone was sufficient to make him guilty of “collusion” under the new National Security Laws. The Hong Kong government sought to ensure that the laws had extraterritorial application. Although Mr Yam is an Australian citizen, exercising his freedom of speech on Australian soil, his conduct was deemed to be criminal. The attempt at extraterritorial application means that Mr Yam will not be able to return to Hong Kong, and he will be unable to stop over in any jurisdiction which has an extradition treaty with China.
Australian Foreign Minister Senator Penny Wong said on Twitter:
The Law Council of Australia has made a statement in support of Mr Yam and Mr Hui:
The Law Council of Australia notes with concern the announcement that Hong Kong SAR Police has issued arrest warrants for eight people living overseas, and placed bounties of HK$1million on each of their heads.
The subjects of these arrest warrants include prominent pro-democracy activists, former lawmakers and lawyers wanted in Hong Kong for alleged offences under the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (the Hong Kong National Security Law).
Two of the individuals named, Mr Ted Hui and Mr Kevin Yam, reside in Australia.
The Law Council has previously expressed serious reservations regarding the Hong Kong National Security Law’s susceptibility to abuse, and its compatibility with the rule of law and international human rights obligations.
This includes in relation to the broadly defined offences of sedition, succession, subversion and ‘collusion with a foreign country or with external elements’, and the law’s purported extraterritorial application.
The Law Council also supported the suspension of the extradition and mutual legal assistance treaties between Australia and Hong Kong SAR in 2020.
The Law Council strongly opposes efforts to arrest and detain individuals exercising their rights to peaceful assembly and expression, which run counter to Hong Kong’s obligations as a party to the International Covenant on Civil and Political Rights, and will continue to monitor developments in Hong Kong.
Meanwhile, the Law Society of Hong Kong has indicated that it is considering disbarring Mr Yam for his crimes.
Here is your periodic reminder that this is a slippery slope. When you allow people to lobby professional associations to expel members on the basis of their political views, you're getting ready to ski the pistes.
Ironically, of course, the actions of the Hong Kong government tend to support Mr Yam’s allegations that the rule of law and democracy are being eroded in Hong Kong. This makes me very sad, as someone with a long association with, and affection for, Hong Kong.
Unfortunately, this is part of a growing trend where Australian academics and scholars are subject to politically motivated sanctions, with several Australian academics having been sanctioned by the Russian government. It is important to stand against foreign governments who seek to punish Australian academics and scholars for merely doing their job.
We should be able to criticise the law, the government, and the judiciary. The judiciary should be open, impartial and independent. And we certainly should not fear being gaoled or sanctioned for criticising the law, judges, or the government.
As a lawyer, and as a believer in the importance of the rule of law and democracy, I stand with Mr Yam, and reject the suggestion that any person should be prosecuted for speaking out in favour of these principles.
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