Legal vs Just
Civil society depends in part upon the existence of a system of justice which ensures the behaviour of individuals is within the parameters of agreed upon values. These values are usually translated into laws with further regulations granting a governing body the power of enforcement. In a democratic system, the hope is that the elected officials empowered to oversee this process represent the values of the majority. However, a judicial system can become unduly biased for many reasons, including unfair electoral systems, communities with multiple cultures (exhibiting differing values), corruption or, as in the case of Hong Kong, imperialist control.
British interest in Hong Kong was primarily economic, prioritising trade as part of it’s imperialist intentions characteristic of the 19th century. When tension and war between Britain and China threatened these interests, Britain took advantage of its military superiority and took control of Hong Kong in the treaty of Nanking, falsely believing that China would never be able to challenge for control. The initial priority of the British delegate was control the territory for trade interests, however implicit with this presence were British cultural values. Britain’s judiciary system became the assumed model of the ruling power. In this instance, the ruling power was neither elected, nor representative of the majority. This was further complicated by a language barrier. “There also existed a sense of racial and cultural superiority among the British expatriates”1 which was likely a greater motivator to implement a British system than economic gain. Britain had by this point adopted the “rule of law based on due process”2 whereas “(t)o the Chinese, justice was deemed to have been done not when the law had run its course but when the right decision was reached and implemented, whether this was achieved by strict adherence to the law or not…it was also meant to uphold public morality and through its demonstrative effect maintain social order”3. In practice this meant that people were convicted without due process and that public forms of corporal punishment were common in order that the whole community was disciplined and regulated rather than merely the individual. This was contrary to the British system of imprisonment. “In practice a limited application of Chinese law and customs was allowed in recognition of the great cultural differences between the Chinese and British people. Although this was originally a well-intentioned concession, it often resulted in much harsher punishments being meted out to Chinese than to European residents.”4 This accentuated the different class status of the two cultures, particularly given the private nature of punishment for the expats and the public shaming of the indigenous Chinese people. Further, laws were introduced that specifically targeted the indigenous and migrant Chinese populations, such as the requirement to carry identification cards and then to carry lanterns at night in order to identify themselves5. Given these laws were new to the indigenous Chinese population, there were frequent infractions and in turn, much greater punishment levelled against the Chinese residents.
By the mid 20th Century, the judiciary system had shifted to including people indigenous to Hong Kong and other Chinese migrants to work in law enforcement. This also meant that behaviour inconsistent with British rule of law requirement, often considered corruption was common. This was presumably in part to the persistent economic disadvantage the Chinese workers experienced.6 The inconsistency between the ideal implementation of the law promoted by the economically secure senior officials and the actual corruption in practice, contributed to a popular belief by the Chinese people that the system was entirely corrupt.7 How this impacted the economically vulnerable of Hong Kong is well documented in Pullinger’s work, Chasing the Dragon. A “major step against corruption was taken in 1960 when a standing committee on corruption was created”8, however a desire to increasingly promote Chinese officers, reflecting the shifting values away from imperial rule, meant that the corruption simply had greater influence. Implementation of new laws and their subsequent enforcement resulted in a significant increase in the integrity of the judicial system which also resulted in a more favourable public opinion9.
According to Tsang “The most important inheritances the British passed on to the SAR are an independent judiciary and the rule of law…they are not indigenous to the Chinese tradition and are fundamental for the protection and advancement of the rights and dignity of the individual.”10 However, what may be interpreted as a victory for freedom, can also be understood another way. The residents of Hong Kong had internalised the penal values of the British empire and would thus reproduce a version of this system after the 1997 relinquishing of power. Michel Foucault11 might suggest that an internalised subjugation had been fully realised and that Hong Kong would thus persist as a British Colony regardless of official governance. Official presence for enforcement of British values was no longer necessary as the general population had internalised their values and would reproduce them.
While Hong Kong’s history is one of eventual empowerment of the indigenous Chinese people, in part because of a stable rule of law, other colonised regions have not experienced similar results. The use of the judiciary system to allow racial discrimination to persist has been a common problem across the British colonies. The innate assumption of superiority which accompanied imperialist ventures has meant that the implementation of the British rule of law has impacted many indigenous communities harshly; a legacy that lingers today. For example, Indigenous Australians—the most highly incarcerated population in the world— continue to falter disproportionately12 under a system they have inherited by force and which has neglected to be revisited in light of shifting perspectives from imperialism toward cooperation and respect. In Canada, where the indigenous people make up just 5% of the total population, they make up 27% of the prison population13. Such statistics raise questions both about the discontinuity between some core values between the co-existing cultures, and whether selective enforcement of law plays a role. It may also be in part due to economic disadvantage which similarly once played a role in Hong Kong. They also point towards the need for greater reconciliatory work between the now dominant culture and the indigenous communities. It is not too much to expect that the body of Christ, would follow Pullinger’s example to be a persistent voice advocating for true and equitable justice.
1 Steven Tsang, A Modern History of Hong Kong.(New York: I.B.Tauris & Co Ltd, 2004), 47. Kindle 2 Ibid.,8.
3 Ibid.,8.
4 Ibid.,47.
5 Ibid.,47.
6 Ibid.,202.
7 Ibid.,202.
8 Ibid.,202.
9 Ibid.,204.
10 Ibid.,268.
11 Michel Foucault, Discipline and Punish: the Birth of the Prison, (New York: Random House, 1975).
12“Aboriginal and Torres Strait Islander Prisoner Characteristics.” Australian Bureau of Statistics, Australian Government, Australian Bureau of Statistics, 7 Dec. 2017, accessed September 12, 2018, www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2016%7EMain%20Features%7EAboriginal% 20and%20Torres%20Strait%20Islander%20prisoner%20characteristics%7E5.
13 McIntosh, Emma, and Alex McKeen. “Overrepresentation of Indigenous People in Canada’s Prisons Persists amid Drop in Overall Incarceration.” Thestar.com, Toronto Star, 20 June 2018, accessed September 12, 2018, www.thestar.com/news/canada/2018/06/19/overrepresentation-of-indigenous-people-in-canadas-prisons- persists-amid-drop-in-overall-incarceration.html.
About the Author
Jenn Burnett
Jenn is lead pastor at The Well church in Kelowna. She longs to see the body of Christ empowered by the Holy Spirit and contending for unity across difference. She also loves rugby, the outdoors, the colour orange and the chaos that goes with raising 4 kids.5 responses to “Legal vs Just”
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Thank you, Jenn, for singling out the justice system the British employed to the indigenous people of Hong Kong. It was very sad to see how colonialism plays with imperialist superiority. I find the application of justice absurd when you know that the people you are applying to do not understand your rule of law in disregard of their cultural values they have grown in. As the saying goes “ignorant of the law has no defence” took dominance over this matter.
This is how sometimes justice is abused even now by the people who understand it especially when one is more superior in wealth than the other. Equity has been and is still a big issue in our societies. We experience a lot of electro injustice here in Africa where the haves takes it all from those who are weak and poor. The human mind has been corrupted from time to time.
When the British first settled in New Zealand in the 18th century, there was a significant indigenous population, and the two got on fine by living in separate communities without a combined legal system. By the time the settlers and traders arrived and urban areas developed, a legal system was required to maintain peace and trading stability. The injustices occurred over time as the land was continually stolen from tribal inhabitants and bicultural urbanisation increased. It took a long time to work out how to navigate the socio-cultural and political difference, and we’re still doing so. My take on Hong Kong is that before the arrival of the British, it was a small fishing community and a haven for travellers and pirates in the South China Sea. There wasn’t much there, hence the limited interest of the Chinese rulers. When the Brisith settlement grew numerically as a trade centre, it also became a refuge for exiles from China following the establishment of the Chinese Republic in 1912. Likewise, the communist revolution in 1949 saw hundreds of thousands flee to HK too. That being the Case, Jen, do you think it is unreasonable to suggest that the British Legal system wasn’t so much imposed on a sizeable pre-existing community, but struggled with the flow of traders and refugees that legitimately sought both refuge and financial security? For me, Hong Kong is a weird sort of two-way compromise of cultural assimilation over time – it’s now a fascinating blend of international English and Chinese. Indeed, it came at a cost, but was the price worth it? Like all countries, HK seems to be organically adapting to it’s changing context.
Jenn,
Thanks so much for your unique thoughts. How do you see and independent judiciary and the rule of law playing out in your locale within British Colombia? You mention discontinuity between core values, selective enforcement of the law, and economic disadvantage as primary factors in the disproportional incarceration of indigenous peoples versus dominant cultures. I believe these same factors continue to fuel the tensions between dominant and marginalized cultures within the United States. As a lead pastor within your church and the Church, what are the best ways you have found to advocate for true and equitable justice?
Thanks again so much for your thoughts, H
I’m still relatively new to the area I live in now, so do a lot of listening. I have found that the majority of First Nations or Metis people within the church are among the collection that are navigating the relationship between the two cultures well. So far I’ve felt my call primarily to continue to call out the issue and invite people to become more aware and to pray, as well as to intentionally support both those who feel specifically called to this ministry of reconciliation as well as those who themselves are indiginous or Metis. When I pastored in Australia, one of my best friends worked in enducation within the Juvenile detention centre. While not specifically for indigenous youth, there was never a non-indiginous youth in the centre. As a church we would make sure we kept talking about it and praying about it and a number of people from the congregation became volunteers who would go in to help the students learn to read. I continue to pray for opportunities to engage here as the Spirit leads. I feel like one of the most important things we can do as leaders is to talk about it, as there has been so little inclusion of our First Nations and Metis people’s stories and current struggle in our history books and educational curriculum.
I feel that those in power will always seek to use the power they have to remain in power. As much as we want a just society, so long as there isn’t a vocal opposition to the ruling power and/or full representation of minorities, there will always be corruption at the highest levels. This is why indigenous and minority peoples from around the world have found themselves taken advantage of and oppressed. The addition of minority voices to the judicial systems have helped, but as you noted there is still a problem of minorities being incarcerated more than majorities all over the globe – even in societies that would deem themselves as just. I wonder what it would take to reverse this trend and also is there a way to make up for past mistakes. South Africa gave it a good try with the Truth and Reconciliation Commission, but even that was dogged with accusations of favoring those previously in power. The area of true justice is a tough nut to crack, but it’s definitely worth the effort.