對法治不同的理解 造就我們才是香港人 Our Understanding of the Rule of Law defines us as Hong Kong People

在本週的專欄, Evan 認為張曉明最近張曉明的「特首超然於行政、立法、司法三個機關之上」的言論,是挑戰我們建立「香港人身份」的框架。「香港身份計劃 (HKIDP) 」由方禮倫創辦,是私人資助項目,旨在記錄、歸檔和探討各種關於香港身份的活動。譯文由 Alan Chiu 提供,英文原文在譯文之下。

In his weekly column on identity, Evan argues that hidden in Zhang Xiaoming’s recent comments on the separation of powers between the executive and judiciary is a challenge to the framework on which our identity as Hong Kong people is built. Evan Fowler is the founder of the Hong Kong Identity Project (HKIDP), a privately funded initiative to document, archive and explore the Hong Kong identity. The Chinese translation is provided by Alan Chiu.

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Given the recent comments by Zhang Xiaoming, the head of the central government’s liaison office in Hong Kong, it might be a good time to consider the role an independent judiciary –  and more generally an understanding of the rule of law – has on our sense of being Hong Kong people.

Let us first consider what was said last Saturday at an event to mark the 25th anniversary of the Basic Law.

Referring to the separation of powers between the executive and administrative branches of government and the judiciary, Zhang was reported as saying “Hong Kong is not a political system that exercises the separation of powers; not before the handover, not after the handover,” and that such a separation of powers could apply only to a sovereign state. He went on to say that the chief executive “possesses a special legal position that transcends the executive, the legislature and the judiciary.”

Chief Executive Leung Chunying, supported by the usual crowd of pro-government mouthpieces including Executive Councillor Regina Ip and Secretary for Justice Rimsky Yuen, were soon out defending a statement that seemed to everyone I know, regardless of political persuasion, a clear violation of what was guaranteed by the Basic Law.

Article 2 of the Basic Law states that the National Assembly cedes Hong Kong the authority to “exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication”; article 19 that Hong Kong “shall be vested with independent judicial power”; and article 85 that local courts “shall exercise judicial power independently, free from any interference”.

It is not simply a case of needing to understand that Basic Law “from each other’s perspective”, as Yuen put it, when one perspective is quite clearly not what was understood nor agreed upon as written. It has also been extremely disappointing to see how far some people are prepared to go to to avoid having to speak truth to power, including quoting Deng Xiaoping’s position at the start of the Sino-British negotiations that would result in the Joint Declaration, on which the Basic Law was drafted. A starting position should not be taken as representative of an end position.

The tragedy of these negotiations is that it they are to my knowledge the only post-colonial agreement that did not involve the people whose lives would be directly affected by the change of sovereignty. Compounding this has been not only reluctance but outright opposition from Beijing to acknowledging and respecting the wishes of Hong Kong people since the territories return to our motherland. Hong Kong people are being demanded to identify with a nation that neither respects nor represents them.

Since 2007 I have spoken with close to ten thousand people about how they identify with Hong Kong as home. I have yet to meet anyone who in their identification with this city, and this is a personal identification, does not consider the rule of law as integral to their understanding of being a Hong Kong person. This is expressed in many ways.

When people speak of Hong Kong being a safe city, it is said from the position of confidence in the police and legal process. The point is not that the exercise of authority has made Hong Kong safe, but that this authority is understood to be exercised fairly, and that this relationship with power has shaped a community that is, on the whole, law-abiding. People respect the law. They do not fear it.

Consider now the position on the Mainland. Can it be said that the law is respected in the same way as to be considered a core institution representative of China and the Chinese people?  Such a system and understanding of the law would represent a serious regression for Hong Kong should they be adopted. It would not only set this city back, and represent a loss of our “competitive edge” as a place to live and do business. It would, more importantly, undermine the foundation on which we understand the nature and dynamics of authority and power, and of our personal position and relations with officialdom.

The significance of this understanding is reflected in how surprisingly many people in Hong Kong will point specifically to the rule of law as being important to them. This understanding is not for a legal or political abstraction, but is instead personal. It is an understanding that is fundamental to how we constructs our sense of self and we engage with and connect with the world around us. It is an understanding on which we feel, becoming integral to our experience of life. It defines in us a sense of security and of individual rights grounded on an understanding of equality before the law. The way we relate to authority, and how we define ourselves and relate to each other, owes much to our presumption that ours is a society governed by the principle of equality before the law guaranteed by an independent judiciary.

What Zhang Xiaoming challenges in his statement is both the nature and the framework of the “core institutions” around which Hong Kong people understand themselves and their home. It is irrelevant whether these represent a “western” framework or understanding. What matters is it is what Hong Kong people understand. We have for at least a generation lived in and been shaped by a world that can no longer sustain such marked divisions as to label a practical understanding of the law as “Chinese” or “Western”. There are no isolated histories to justify such distinct perspectives. Power and legitimacy come not from history but from the people from whom they are derived.

Even if we were to believe Beijing, and accept that the Basic Law should be read in a particular way, does this make it right on those whose lives and very sense of self will be changed? If Hong Kong people have so fundamentally misunderstood, and have so misread what has been put to writing, the Basic Law has little value other than to those with know Beijing’s mind.

In adopting Zhang’s perspective of Hong Kong we must fundamentally alter not only what Hong Kong is but what it means to us, and how we understand ourselves. How would growing up in a city where the law derives its authority from and is subservient to the closed politics of a city two thousand kilometres away affect who we are? Would we relate to Hong Kong in the same way, and who would we be?

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有鑑於香港中聯辦主任張曉明最近的言論,這或許是個適當的時間,思考一下司法獨立的角色以及更廣義上對法治的理解,如何影響我們作為香港人的感受。

不過,首先讓我們重溫上週六《基本法》頒布 25 周年研討會上,張曉明說過什麼。

根據報道,張曉明在提及政府各行政、立法機關與司法之間的分權如是說:「香港不是實行三權分立的政治體制,回歸前不是,回歸後也不是。」他又指,三權分立通常只適用於主權國家(而香港很遺憾不是)。他接著說:「行政長官具有超然於行政、立法、司法三個機關之上特殊法律地位。」

包括行政議員葉劉淑儀及律政司司長袁國強等的親中喉舌所支持的行政長官梁振英,在張曉明發表言論後不久,就很快為此辯護。但無論政治取向,我身邊的每一位,都感覺張的言論明顯違反了《基本法》所保證的「高度自治」。

《基本法》第 2 條規定全國人民代表大會授權香港依法「實行高度自治,享有行政管理權、立法權、獨立的司法權和終審權。 」,第 19 條則規定香港「享有獨立的司法權」;而第 85 條規定,香港的法院「獨立進行審判,不受任何干涉」。

當有人的角度顯然不是與《基本法》所寫的一樣去理解與同意下,事件經已不像袁國強所說「既應該從香港角度來看,也應該從中央角度來看(《基本法》)」這樣簡單。此外,令人極度失望的是有些人為了避免說出真相,經已準備充足,包括引用鄧小平於《基本法》起草、後來促使中英聯合聯明的中英談判之初所表明的立場。

根據我所了解,這些談判的悲劇在於,這是後後殖民時代的唯一協議。而這一協議並無得到直接受主權改變影響生活的人民的同意。此外,自回歸以來,北京不願且公然反對承認並尊重香港人的意願;香港人卻被要求認同一個如此不尊重又不代表他們的國家。

自 2007 年以來,我差不多經已與近 10 萬人談及他們是如何視香港為家。我還沒有遇到任何一個人一方面認同自己是香港人這一個人身份,卻沒考慮過這城市的法治制度。而這可從不同方面看出來。

當人們談到香港是一個安全的城市,他們都是從對警察和法律有信心出發。當中所強調的,不單是權力的行使方法令香港變得安全,而是這種權力被合理地行使,這種關係亦塑造一個整體守法的社會。人們尊重法律,並非懼怕法律。

試想想大陸現時理解「法治」所循的立場。我們可以說法律是被尊重且是個核心制度代表著中國與中國的人民嗎?如斯制度與對法治的理解代表著香港的倒退——不僅是民生與居住方面,將我們的經濟競爭優勢拱手相讓,而更重要的是破壞我們對權威的性質和動力的理解之基礎;同時,作為個人,我們的立場、如何去看這種倒退?

這種理解的意義,可從意外地多的香港人特別指出法治對他們是很重要看出來。它是在於個人的,並非法律或政治上的抽象概念。它建基於我們的觀念和自身如何與周圍的世界連接起來。我們感受到這種理解,對於我們的生活經驗是不可或缺的。我們的安全感和個人權利,都源自「法律面前,人人平等」的理解。這構成了我們對於權威、自身以及其他人的看法,並很大程度上假設「人人平等」是管理我城的原則——一切都是司法獨立所保證的。

圍繞香港人理解自身與家園的核心制度,不論其性質和框架,均是張曉明的致辭所挑戰的。這跟制度框架西化以及偏向西方的想法無關。重要的是,香港人如何理解這個制度。世界經已不能承受這種「西化」與「中式」法制的標籤,而我們也至少有一代,生活並浸淫於這觀念之中。我們也沒有孤立的歷史證明這種截然不同的角度是正確的。權力與合法性不是來自於歷史,而是從「人」而來的。

就算我們相信北京、接受《基本法》被如此解讀。但對於那些生活以及自我意識需要改變的人,這又是否正確呢?假如香港人真的對《基本法》犯下根本性的誤解與誤讀,我們無法閱讀當中的意義,那麼北京在期待著什麼,在她的眼中,《基本法》的價值又在哪?

換轉以張曉明的角度來看香港,我們肯定從根本上改變了香港、我城對我們的意義,以及我們如何了解自己。當我城的法律權威來自並從屬於一個距離二千多公里、封閉政治的城市,我們如何在這裡成長、如何影響我們的身份?我們能以固有的方式去理解香港嗎?而我們又會是誰?

(原刊於立場新聞)

 

Respond to 對法治不同的理解 造就我們才是香港人 Our Understanding of the Rule of Law defines us as Hong Kong People

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