The Hong Kong government’s attitude to the rule of law is interestingly ambiguous.
It wants to claim credit for being a law-abiding government, but it does not want to sacrifice the achievement of other desires for that purpose.
This implicit conflict is well encapsulated in the issue of restaurant licenses.
In any reasonable jurisdiction, there are certain requirements for restaurant operators aimed at ensuring hygiene and other decent food-related objectives.
However, these days, all government departments are expected to show their enthusiasm for national security.
So last year, the Department of Food and Environmental Hygiene (FEHD), which licenses restaurants, treated permit holders with a letter warning that the licenses would be revoked if the holders or their “related persons” engaged in conduct against national security or the public interest.
Now the FEHD has formed on the issue of using existing regulations to harass or harass restaurants that the government, for some mostly political reason, doesn’t like.
There were complaints that what was effectively a new license condition was too vague and therefore open to abuse.
Not so, chief executive John Lee said at a press conference. “Offensive behavior means any offense that endangers national security, or acts and events that are contrary to national security and public interest in Hong Kong. It is very clear,” he said.
But it is not very clear, because two very different things are being mixed. An offense that endangers national security is a criminal matter.
Sentencing takes place in a public court and is a matter of record. A restaurant owner convicted of such an offense may think that losing their license is the least of their problems, but they can read the law and see how it is enforced.
They’ll avoid traditional menu items like “Five Dumplings, Not One Less” or “Three Burgers: The Revelation of Our Thyme.” “Related persons” will be encouraged to behave themselves.
But what does the public interest demand?
This mystery continues in the latest version of the license, which has a clause that we can consider complete:
“I will ensure that no act or activity engaged in or engaged in by me or any of my related persons (including directors, officers, employees, agents and subcontractors) may constitute or cause the occurrence of an offense that endangers national security under the National Security Law or other laws of the HKSAR, or conduct is contrary to the moral interests of public safety or public security. security) of Hong Kong.”
As tends to happen in very long sentences, the grammar falters a bit in the closing stages and seems to require either inserting “it” after the behavior or deleting “is” in the same place. But that doesn’t affect the meaning, which still leaves the question of what might be in the public interest.
There are some legal words on the phrase, although unfortunately, they are not particularly helpful. Some restrictions on media stories can be waived if publication is “in the public interest”.
See also: All Hong Kong restaurant licenses will have national security clauses by September – ministry
Judges tend to be quite conservative about this, but the general rule seems to be that the public interest is served by stories that expose wrongdoing (in a broad sense) or stories that warn the public of dangers it should know about.
In contract law, it is well established that contracts will not be enforced unless their effect is in the public interest. Once again, this doesn’t come up very often.
Judges are even more hostile to unenforceable contracts than they are to chatty journalists, but traditionally, contracts are not enforced if they involve gambling or commercial sex.
The morality/order/security part appears to be inspired by the part of the Bill of Rights, which specifies the purposes for which the government can restrict freedom of expression.
This suggests – a worrying thought – that the government intends to use threats to restaurant licenses to limit freedom of expression and proposes that if someone complains they will rely on the restrictions allowed.
This may not apply in court because the Bill of Rights also requires restrictions to be specified by law and necessary in a democratic society. It is clear that legal language is being used here, but perhaps as an embellishment rather than a substantive signal.
Where does all this leave us? Well, one theory is that the government wants to increase its options to crack down on businesses that supported the wrong people in 2019.
Asked if that was the case, Ronnie Tong, a government adviser, replied last year that it was “hard to say”.
Another theory is that the unstated intention is to reinforce the existing routine practice whereby food outlets that have accepted reservations from organizations the government dislikes tend to cancel them at the last minute.
Maybe it’s just that “public interest” is one of those elusive philosophical concepts like “soft resistance” that worries the public, but is perfectly clear to recycled cops and the people who write the front page of Ta Kung Pao.
The other puzzle that remains is why restaurant licenses have been singled out. All government departments, we are told, have an obligation to support national security. But numerous other licenses issued for various purposes by various departments have not been similarly amended.
However.
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