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尊重批評:律政司司長的解釋語帶輕蔑,香港人的雅量何在?

2017/8/31 — 10:50

袁國強

袁國強

【譯文由 Ben 提供】

按:本文以律政司司長袁國強及其他知名評論員的發言為例,道出現時建制內普遍存在的心態,就是對別人的批評指責往往不屑一顧,而不會設法解決問題。方禮倫希望大家更有耐心,力求和解,彼此尊重, 這樣才能彌合分歧,而不是凡事好走極端。英文原文在中文譯文之下。

In this essay, the comments of Secretary for Justice Rimsky Yuen and other high profile commentators are given as examples of a more general attitude within the establishment to be dismissive of criticism and negativity, rather than to address relevant points. Evan suggests a more patient, conciliatory and respectful approach would do more to heal divisions than to constantly play to the fringe.

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停了兩年,最近重新執筆寫作,我便開始收到充滿仇恨的郵件。事緣我接受了一次英文訪問,講述我決定離開香港的原因。在採訪中我的情緒較為激動,因為香港是我唯一熟悉的家,要離開它是我一生最困難的抉擇。

我收到一大堆充斥著種族偏見的惡言惡語、儘管採訪是為一個英語廣播節目而做的,那些人卻連人家講英語也肆意侮辱。我有部分華人血統,在香港土生土長,但那些人就是視而不見。把我當成「殖民地遺產」的一部分,永不容我在原地生根。我的「存在就是國家的恥辱」;在他們眼中,我既也不屬於也不能屬於中華大地,所以我去留與否根本無足輕重,而我離開家園是否傷心痛苦也毫不相干。

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但是,比這些評論本身傷害更深的,是我知道大部分人都是按國家指示的觀點來發言。幾乎任何人寫文章提到中國或與北京利益攸關的事情,都會被「五毛黨」大量的類似辱罵所轟炸 ——這班人沒有幾百萬也有數十萬,只要我國政府每人給五角寫一個貼子,就會群起響應。在許多國家,以及依照我所認同的香港價值觀,這些言論足可構成「仇恨犯罪」,現在竟由我自己的國家大力支持。這是很多香港人已切身體會的另一轉變,卻沒有載於任何官方紀錄。當國家不再保護我們,反而背地裡壓迫我們時,我們都會感到無力招架。

由於心裡難受,我向一位親友求助。我用短訊告訴她,那些人帶著種族偏見,咒罵人說英語,令我感到痛苦。我滿以為她會打電話來,即使幫不了甚麼忙,至少可令我好過一點,讓我知道自己的道德感強到哪裡。等到她的回覆來了,卻是一句:

「我對政治沒興趣。」

我必須承認,這回應讓我更苦惱。這不關乎政治。我再次發訊息向她解釋,說譴責這種惡毒咒罵,與政治無關,而是基於道德立場。我的口氣變了,於是她不得不回答:

「我不怪你, Evan 。別忘記,你病了。」

這回答顯示了一種心態,這心態很遺憾已成了當權派處理批評或反對意見的慣見掩飾。首先,無論批評是否屬於政治範圍,都蒙上政治色彩;道德、法律和基於原則的辯論,現在都變成了政治話語;還馬上把說話的人標籤為「反建制」和「不愛國」。不管別人批評甚麼,一律置若罔聞。而且還暗示,問題出在我身上。

在《南華早報》備受重視的專欄作家盧綱 (Alex Lo) ,回應巴里·韋斯 (Bari Weiss) 在《紐約時報》發表的文章《諾貝爾和平獎應該頒給香港的青年政治犯》,說:

以前我讀《紐約時報》,是因為喜歡它的新聞和分析。現在我讀它,也是因為喜歡它的諷世筆觸。它比擅長諷刺的《洋蔥報》網站更好看:所有笑話都適合見報。

然後,同一份報紙的褚簡寧寫道:

先私下定罪再公開審判的「莫須有」法庭已駕臨香港。我們的法官以往無所畏懼、獨立自主,現在卻偷偷與政府高官交頭接耳,絞盡腦汁,看如何給膽敢反對中國共產主義巨人的年輕民主鬥士,捏造罪名。

法官大批製造良心犯,令他們成為值得獲頒諾貝爾和平獎的英雄。這是虛構嗎?不,這是事實,正如《紐約時報》言之鑿鑿的報導。

我同意要把諾貝爾和平獎頒給黃之鋒、羅冠聰和周永康是荒謬的提議。但文章的意思正是如此。褚簡寧和盧綱都沒有看清楚,儘管巴里·韋斯的說法不無道理,他的建議其實是半開玩笑。

褚簡寧又說:

我感到大惑不解的是,如果這些反對派律師和法律學者認為我們現在的法官腐敗透了,單憑人們的政治信仰而將之下獄,那為什麼還要留在法律界呢?

我不想偏袒哪一方,但我不明白為何政府決定對三子已受審服刑的案件提出刑期覆核,這件事不應拿來討論,尤其是已有那麼多相關因素可供考慮。

首先,國際和本港已不斷有人清楚指出,重新審判上述三人所根據的「公安條例」,已被聯合國人權事務委員會批評為可能對基本人權「造成過分限制」。請注意,批評針對的是這些條例有可能遭人非法利用,違反國際法,而要求覆核刑期,正表示這些條例可能被人濫用了。

還有一個根本的法律原則,是「雙重追訴」的問題,即不能對同一罪行進行兩次審判。政府準備司法覆核刑期時,已有人警告此舉可能會違反「公民權利和政治權利國際公約」第十四條(第七項)規定的香港國際法律承諾,即「任何人依一國法律及刑事程序經終局判決判定有罪或無罪開釋者,不得就同一罪名再予審判或科刑。」儘管由上訴法庭裁定重審案件,並不構成雙重起訴,擺出來的理由是政府在案件仍未結束時提出覆核申請。因此,這是基於法律程序而不是基於原則或實際結果的判決,實際情況是三人依然會就同一罪名再予審判,依然會被逼因同一罪名而服刑兩次。我所關心的是,上訴庭決定接納覆核申請,這決定背後有甚麼理據,顯然並沒有在辯論中受人注意。

還有一個問題,就是律政司司長袁國強據說推翻了檢控人員的建議,堅持重開雙學三子的案件。他為了澄清形勢,平息批評聲音,在多份報章發表文章,題為《上訴庭就黃之鋒、羅冠聰和周永康的判決──回歸事實》。文中強調「若干評論反映部分人士對案件的基本事實和本港的法律制度缺乏認識,有需要就相關法律和司法制度的不同階段作解說。」

然而,對於是否遵循法律程序,這點甚少引起爭議;倒是批評者提出那些更基本的法律觀點,袁國強卻顯然提也不提。他在文章結尾重申:

由展開檢控至上訴法庭處理刑罰覆核,每個階段均是嚴格依據法律進行。 3 名被告被定罪和判刑,完全是因他們的違法行為,而非他們的政治主張。作以上解述後,我誠希本地及國際社會繼續尊重香港的獨立司法機構,避免提出絕無基礎的指控。

政治和司法獨立的問題,與雙學三子的政治主張毫無關係,問題在袁國強自己和政府要提出覆核,是務必令三人鋃鐺入獄而後快。只要三人判囚超過三個月,刑滿釋放後,至少5年內不得參選立法會,這段期間,參選資格可能已改寫了。

還有袁國強最後一行令我彷如針刺,我覺得就像被人叫我記得自己是病人一樣。他提醒我們要「尊重香港的獨立司法機構」,而對所有批評都認為是「絕無基礎的指控」。他無視批評不僅來自本港和國際的市民大眾,也來自地位顯赫、備受尊敬的律師和政界人物。袁國強是在暗示,尊重法治機構就是不許人質疑,不許提出批判看法,更不許向法律機構追究責任。

葉劉淑儀對此案的評論,是我看過比較好的一篇:《把香港學生領袖送進監牢,結束了林鄭月娥與反對派的蜜月期》。撇開那些我無法苟同的政治傾向和結論,至少葉劉淑儀有撰文探討這問題。她勾勒出袁國強作這一決定的政治背景:親北京校長蔡若蓮獲委任為教育局副局長;高鐵計劃在西九總站實行「一地兩檢」;以及現時對佔中以來參與過各種抗議示威的其他幾名活躍分子進行刑事訴訟,其中包括兩名泛民立法會議員。把她的話翻成中文:「關於罪與罰的辯論,只不過是 2014 年以來撕裂社會的許多衝突其中一面,使本港分裂為建制派(藍色)和反對派(黃色)兩個陣營。 」

葉劉淑儀的結論是:「我們的社會在思想意識、政治及文化上的衝突,已根深蒂固,很難只通過健全的行政措施或北京的支持來解決分歧。林鄭月娥必須加倍努力。最重要的是,她必須令自己立於道德高尚之地,在即將到來的爭端為理性而沉默的大多數發聲。」

她說得不錯,但只是在形勢判斷方面。香港特區政府要保持道德高尚,需要下更大功夫,才能代表本港市民,維護港人的價值觀,包括我們獨特的文化身份和語言特徵。特區政府應該根據其原先成立的構想,保護我們的各項制度免於被政治侵蝕,尤其是香港一直保存下來的學術自主和司法獨立。理性而沉默的大多數應可自由表達己見,而不會被視為不愛國,也不會收到充滿仇恨的郵件。他們的批評應該有人認真聆聽,好好處理,不論是以行動回應,或是以有禮講理的態度來回答。近年來的政治令人充滿怨氣,這只能靠忍耐、體諒和節制使之慢慢消除。我可以很有信心地說出至今大多數人的看法,就是認為香港需要的,很可能不是北京多些「撐腰」,而是北京少些「插手」。

我的親友也許​​知道我最近從嚴重的抑鬱走出來。她可能知道我患有單極抑鬱障礙。但這並不影響我的思考和感受能力。不能憑這個理由,對我的話不屑一顧。我不是病壞了。而最低廉的施恩方式,就是說你病了,好,讓我來醫你吧。

香港人和國際人士所關心的問題,不應單憑一句「絕無基礎」就予以抹殺,也不應成為值得諷刺的話柄。我們不需要別人告訴我們生病了,不需要別人告訴我們有分歧,也不需要別人不斷提醒我們那些社會的邊緣人所作的愚蠢行徑。像盧綱和褚簡寧等人,為了追求煽情效果,將辯論推向了不屑一顧的極端,這只會挑起紛爭,突出社會和政治上的分裂。香港應有另一種更願意尋求和解,更成熟而誠實的處事方法。眼下這種好勇鬥狠、絕不妥協、要麼是自己人要麼是敵人的心態,不是以往香港政府的運作方式。今天政府選擇這種做法,任命官員在這樣的氛圍下執行管理,改變了公務員和整個社會的理想和精神面貌,這樣的發展其實大家並不樂見。

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Respect Criticism: What the Dismissive Tone of the Secretary for Justice’s Supposed Clarification Says About Hong Kong

Recently, having returned to writing after a two year hiatus, I began to receive hate mail. I agreed to give an interview in which I spoke, in English, of my decision to leave Hong Kong. It was a highly emotional interview, as Hong Kong is the only home I have known and the decision has been the most difficult of my life.

What I received was a flurry of racial and anti-Anglophone abuse, although the interview was for an English language broadcaster. My part-Chinese ancestry and my roots in Hong Kong count for nothing. I am part of a “colonial legacy” that should never have been allowed to take root; my “existence represents national humiliation”; and I cannot and do not belong on Chinese soil. Thus my decision was meaningless, and my heartache and pain of leaving my home irrelevant.

But what hurt far more than the comments themselves is knowing that much of it represents state sponsored views. Almost anyone writing on China or on areas in which the Beijing has interests will be bombarded with similar abuse from “wu mao” (50 cent) - an army hundreds of thousands if not millions strong paid by our national government half a yuan for each such posting. What would in many countries, and by the values of the Hong Kong with which I identify, constitute hate crime is now sponsored by my own state. It is yet another example of a change so many people in Hong Kong have experienced which does not appear in any official record; a sense of powerlessness to react as the state no longer serves as our protector but is the source of our oppression.

Feeling hurt I turned to a close relation. I messaged her that I was pained by the racists and anti-anglophone nature of the comments. I expected to receive a call. Even if nothing could be done, a supportive line would help emotionally - a confirmation of my moral sensibility. The reply came:

“I am not interested in politics.”

This, I must confess, upset me more. It was not politics. I messaged again explaining that condemning such hateful abuse was not a political but a moral stance. My change in tone warranted this reply:

“I forgive you Evan. Remember, you are sick.”

The reply demonstrates an attitude that has sadly become symptomatic in the way the establishment addresses any form of criticism or negativity. Firstly, it is politicised whether or not the criticism is raised within political circles; moral, legal and arguments on principle are now political; and one is immediately labeled as “anti-establishment” and “unpatriotic”. Criticism is not considered, but similarly dismissed. The implications, as I received, is that the problem is with me.

This was Alex Lo, the columnist given most prominence by the South China Morning Post, writing in response to an article "A Nobel Prize for Hong Kong’s Democrats" by Bari Weiss published in the New York Times:

I used to read The New York Times for news and analysis. Now I can read it for satire, too. It’s even better than The Onion website: All the jokes that are fit to print.

Then there is Michael Chugani, in the same paper:

Kangaroo courts have arrived in Hong Kong. Our once fearlessly independent judges now huddle in secret with top government officials to brainstorm trumped-up charges against our young Davids of democracy who battle the Goliath that is communist China.

Judges churn out prisoners of conscience, making them heroes worthy of the Nobel Peace Prize. Fiction? No. Fact, as told by The New York Times.

I agree the suggestion to award Joshua Wong, Nathan Law and Alex Chow the Nobel Peace Prize is ridiculous. But it is meant to be. What both Chugani and Lo fails to read is that Weiss' suggestion is clearly written with a degree of tongue in cheek, though it nevertheless makes a point.

Chugani again:

What baffles me is if these lawyers and legal academics in the opposition camp believe we now have corrupt judges who jail people solely for their political beliefs, why remain in the profession?

Without wanting to take sides, I do not see why the government’s decision to reopen a case for which Wong, Law and Chow had already been tried and served their sentences should not be discussed, especially given that there are so many related points of consideration.

Firstly as has repeatedly been made clear both by international as well as local criticism, the public order ordinance under which the trio were and will again be tried has been criticised by the United Nations Human Rights Committee as possibly “facilitat[ing] excessive restrictions” on basic human rights. Note then that the criticism is that it could be abused in a way that would be illegal under international law, and that in demanding a retrial there is a sense that this may be the case.

There is also the matter of the fundamental legal principle double jeopardy, that one cannot be tried and sentence twice for the same offence. In reopening the case the government has been warned that it may be in violation of Hong Kong’s international legal commitments under the article 14(7) of the International Covenant on Civil and Political Rights. Whilst it is true the Court of Appeal ruled the re-opening of the case would not constitute double jeopardy, the reasoning given is that the government application was made whilst the case was still open. It is thus a ruling based on procedure, and not principle nor effect - the trio will still be tried twice, sentenced twice and will be forced to serve out two sentence for the same crime. What concerns me is that the reasoning behind the Court of Appeal decision is notably absent in commentary around the debate.

There is also the question as to why the Secretary for Justice, Rimsky Yuen, reportedly overruled his legal advice to reopen the case. In an attempt to supposed clarify the situation and quash criticism, Yuen wrote a widely published article entitled "CA decision concerning student activists: A Factual Account". In it he focused on the “basic facts of the case or our legal system, it is important that there should be an explanation of the different stages of the legal and judicial process.”

However there is little dispute that legal process was followed. Yuen notedly fails to address any of the more fundamental points of law raised by critics. This is again reconfirmed in Yuen end summary:

From the commencement of the prosecution up to the review of sentence by the Court of Appeal, the defendants were dealt with strictly in accordance with the law. The defendants were convicted and sentenced for their unlawful conduct, not for their political ideas. With these explanations, I hope the public and the international community will continue to respect our independent judiciary and refrain from making baseless attacks.

The question of politics and judicial independence has nothing to do with Wong, Law and Chow’s political ideals, but in his own decision and that of the government to reopen the case has no doubt with the intention that the trio be given a prison sentence. A prison sentence will bar the three from standing for the Legislative Council for at least 5 years following their release, during which time the terms of qualification may change.

There is also the sting, as I felt when was told to remember that I am sick, in Yuen’s last line. We are reminded to “respect our independent judiciary.” All criticisms are considered to “baseless attacks.” This despite criticism has come not only from a local and international public, but from leading and well respected lawyers, and political figures. Yuen implies that to respect an institution such as the rule of law is not to question, not to view it critically nor to call it to account.

One of the better commentaries I have read on the case was by Regina Ip, Jailing of Hong Kong student leaders marks the end of Carrie Lam’s honeymoon with the opposition. Forgetting her political leanings and conclusion, which I do not share, she at least writes about the issue. She outlines the political context in which Yuen made this decision: the appointment of Christine Choi, a pro-Beijing headmistress, as undersecretary for education; the unveiling of the “co-location” plan at the West Kowloon terminus of the high-speed rail link; and the ongoing criminal proceedings against several other activists, who had taken part in various protests since the onset of Occupy Central, including two legislators from the pan-democratic camp. In her words, “the debate about crime and punishment is only one dimension of the many conflicts which have torn asunder our society since 2014, dividing it into the establishment (“blue”) and the anti-establishment (“yellow”) camps.”

In conclusion, Ip writes: “the conflicts in our society – ideological, political and cultural – are too deep-rooted for the differences to be resolved purely by sound administrative measures or support from Beijing. [Chief Executive Carrie] Lam will have to work even harder. Above all, she must establish her moral high ground and speak for the rational, silent majority in upcoming debates.”

She is right only in her diagnosis. To maintain the moral high ground the Hong Kong SAR government needs to do more to represent and defend local people and their values, including our unique cultural and linguistic identity. The SAR government should, as it was devised, be able to protect from politics our institutions, including and critically Hong Kong’s inherited academic and judicial independence. The rational, silent majority deserves to be able to express their opinions freely without being labeled unpatriotic and receiving hate mails. Their criticism should be listened to and addressed, either in action or with polite and reasoned answers. The poisonous politics of recent years may only be tempered with patience, understanding and moderation. What Hong Kong most likely needs, and I write this with confidence that this is by far the majority view, is not more but less “support” from Beijing.

My relation may know I have recently overcome a deep depression. She may know I have been diagnosed with unipolar disorder. But this does not affect my ability to think and feel. It is not a reason to be dismissive. I am not sick. It is the lowest form or patronage: to play doctor to the sick patient.

Hong Kong and the international community deserve more than being told that our concerns are “baseless,” and worthy of ridicule in satire. We do not need to be told we are sick. We do not need to be told of our divisions, and constantly reminded of the antics of those who live on the fringe. In their case for the sensational the likes of Alex Lo and Michael Chugani have swung the debate to the dismissive extreme, which serves only to provoke and highlight social and political divisions. Hong Kong deserves another more conciliatory, mature and intellectually honest approach. This more aggressive, uncompromising, with us or against us approach is not the way past Hong Kong governments worked. That it chooses to take this approach today, and to appoint people who operate in such an environment, changing the ideal and ethos of both the civil service as well as society at large, is not a welcome development.

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