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.
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.