By Wong Yan-lung SC
Hong Kong is constantly embroiled in political and legal controversies. In all these years, universities are often in the frontline of such fiery battles. Baptist University is not exempted. Well, as we all know, what does not kill you makes you stronger. So on the Founder's Day, let me hit this positive note. Stormy event, properly digested and reflected upon offer opportunities for University, Faculties and Universities to dig deeper into the truth; and the truth commonly embraced will build you up and bring everybody closer together.
The Hallmark of today's culture, particularly among the young people is the fulfillment of individual rights. Among all the fundamental rights, the freedom of expression is always considered to be a primary one. It has been described as the life blood of democracy, a brick on the abuse of power by public officials, and in the words of one Nobel Peace Prize laureate, as the foundation of human rights, the source of humanity and the mother of truth.
In Hong Kong this right is guaranteed by the Basic Law and the Hong Kong Bill of Right. Adequate protection of this and under fundamental rights are the facet of the rule of law. Freedom of expression is the rule, and the regulation of each is the exception requiring justification, so rights are rights. They are to be construed broadly and liberally. Restrictions are restrictions. They only be imposed as prescribed by law and if they are necessary.
However, life tells us that freedom has the potential to become tyranny. Someone observed the defence of individual rights has reached such extreme to make society as a whole "defenceless" against certain individual.
Long ago, Pope John Paul II has already observed that there are many attempts in the world to set freedom in opposition to the truth and indeed to separate them radically. He reminded us that individual liberty is only meaningful in the context of an ordered society.
The January incident concerning your University reminds me of a case I did some years ago before I was appointed as Secretary of Justice. In 2001, I was instructed by another University to defend it in a judicial review application commenced by another graduate. In that case, the student commenced legal proceeding to overturn the decision of the disciplinary committee to reprimand him for rude, impolite and intimidating conduct towards a professor. The student argued that his right to freedom of speech has been infringed by the disciplinary procedure. The court dismissed the claim, firstly because the committee's decision is not admissible to judicial review. In other words, judicial review is not [a] suitable remedy for this kind of claim.
During the trial, the student's counsel argued, believe it or not, that if a person has a justifiable complaint, he could act in an impolite manner, without being held answerable under any rules. That's on record.
The court rejected that argument and said "the proposition is startling because civilised behaviour is one of any modern society was aiming at, this is especially so in educational bodies, such as universities". "To suggest under some situation people can legitimately abuse each other is an abhorrent thought". First of all, don't get me wrong. I'm not giving legal advice. The facts of each case differ, and human right jurisprudence develop much deeper after 2001. However it does show that you are not alone. Other educational bodies are faced with the difficulty between striking a proper balance between the respect and protection of rights on one hand, and their own task to develop whole person of students on the other.
After stating the right to freedom of expression, Article 63 of the Hong Kong Bill of Rights continued to provide as follows: the exercise of the right carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, provided by law that are necessary, for respect of the rights or reputations of others and other things as well.
To strip it down to something simple, in the Lord Hoffmann, one of our non permanent judges of the CFA as follows: the give and take of civil society frequently requires that the exercise of private rights has to be restricted in the general public interest, therefore as a matter of law not just as a matter of moral, give and take is an essential element in the exercise of fundamental human rights. So justice to oneself can means injustice to other persons.
There is a significance difference between the fulfillment of individual rights and the achievement of justice, fairness and equality. If one is genuinely concerned with justice, fairness, and inequality, one will work hard to embrace respect for others, to embrace protection of rights of the other, as opposed to the mere assertion of one's own rights.
Now speaking of the pursuit of justice, fairness and equality in Hong Kong, it is particularly natural for one, especially the young people to relate to the quest for democracy. On that topic, we cannot get away from the event of past few years following the political debate on the proposed constitutional reform.
In this connection, the Court of Final Appeal delivered a landmark decision about month ago. The Court addressed the question whether the motive of the demonstrators, as an act of civil disobedience to exercise their constitutional right to fight for justice, is relevant to sentencing upon conviction of public order offences. The CFA affirm that the court can take such motive into account, although the weight to the attached to motive would depend on the facts of the case as well as the need for deference of punishment. CFA emphasised that to conform to civil disobedience as understood, the action carried out must be peaceful and non-violent. Where violence is involved, a plead for leniency carries little weight if any. The "red line" has been crossed.
The movie Gandhi happened to be on TV last week. Gandhi was ready and keen to plead guilty and to go to prison for sedition offence. Gandhi as you know is an English qualified lawyer and he submitted to the magistrate that he deserved the most severe sentence, because he has no defence against the offence. And it was the British government who tried hard to persuade [him] not to do so.
Many do not appreciate the true civil disobedience in fact affirms the obligation to the legal system, as the CFA said an expectation of punishment is inherent in the act of civil disobedience, since it is by accepting the punishment, that the protestor seek to draw attention to the injustice against which he is demonstrating.
The events during the historic time Gandhi lived are highly unusual. During my tenure as Secretary of Justice, a slogan of civil disobedience used by some LegCo members to justify the throwing of bananas was plainly an abuse.
The rule of law is incapable of attaining perfect justice, however history and human experience tell us that where there is no rule of law, justice can hardly be attained. So I would urge everyone, particularly our young people to seek justice within the law, not outside the law.
No one is above the law, even the state cannot disregard the law, and takes thing into his own hands, nor can the crowd disregard the law, and take things into his [their] own hands either. Even you might arguably have the popular mandate, unless the law is first changed, the law still has to be observed.
Consider recent event in Catalonia, in Spain. Who is violating the rule, or the rule of law? Is it the Spanish government, who assumed direct rule over the autonomy region, who was criticised for violating human rights, or is it the Catalan Government who ignored the Spanish Constitutional Court's ruling that the independence referendum and the attempted succession from Spain are illegal? A lot of fruit for thought.
So don't jump to the conclusion too soon. We have seen from history that very few people could be able to say there would be no more room to attain justice within the law, but one has no choice but to break the law to attain justice.
Ladies and Gentlemen, many of you here are educationist and entrusted with heavy responsibilities. Whatever has happened, has been happening in University and in Hong Kong, we must not abandon our mission to empower our young people to develop a strong sense of right or wrong, to care about what is happening in Hong Kong, and not to be indifferent.
No community can truly thrive unless it is viewed with desire to noble causes beyond selfish pursuits. Pursuit of justice is noble and crucial, students should be encouraged to speak up and speak against anything that is unjust and unfair. However that is not all, I do not believe true spirit of justice can take root unless one also develop among our young people two other important qualities. First a strong sense of respect for other people's right, secondly a sense of empathy for those who are in disadvantaged position, who cannot speak for themselves and cannot claim their protection under the law.
Pursuit of justice and fairness is far more genuine, powerful, and effectual if it is based on response of direct witnessing of suffering of injustice and unfairness, as opposed to obsession of one's own personal rights or mere obsession of ideology or ideals.
In Hong Kong, too much has been spent on resorting to legal battles to resolve what are essentially political issues. In famous speech delivered at Harvard University in 1978, the Soviet dissent, also a Nobel laureate, Aleksandr Solzhenitsyn, insightfully said this: "Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing man's noblest impulses"
So there is a more urgent need to return to noble impulses of mankind.
We just passed the OSCAR season. Apart from Gandhi, some of you maybe the older ones may remember another OSCAR-winning movie Kramer vs Kramer. In court, Mrs Kramer pleaded with the judge that she as the mother has the right to the custody of the child and she won. At the end however, seeing how the assertion of her rights might destroy the loving relations between ex-husband and her son, she yielded and did not take the boy away.
In your University's mission statement, apart from committing to academic excellence in teaching, research[ing] and service, you emphasised the development of whole person, viewed upon the heritage of Christian higher education.
Martin Luther King, another prominent figure associated with civil disobedience said this: "At the centre of non-violence, stands the principle of love." At the centre of Christian heritage, stands the even higher principle of love.
This is the full speech given by former Secretary for Justice, Wong Yan-lung SC, on the Founders' Day of Hong Kong Baptist University. It is compiled by CitizenNews with minor edits.