Justice & Peace
Justice & Peace
Sustainable peace and social justice go hand in hand.
Different communities understand justice differently. On day four, the Peace Fellowship invited Margaret Ng, a barrister and former legislator, and Chi-Wai Cheung, Vice-chair (External Affairs) of the Hong Kong Social Workers’ General Union, to talk with the Fellows about how to realise the spirit of justice in Hong Kong’s judicial system and public policy.
Social justice starts with human rights
To exist in this world inevitably means being defined by our identities, roles and traits. Gender, skin colour, religion, class, language, age, traditions and customs, political attitudes, profession, education, intellect, marital status, family role, sexual orientation, citizenship, even our innate physical or psychological barriers distinguish me from you and you from another. Realistically, there are always differences between people, and where there is difference, there is inequality. The goal of a just society should be working to eliminate various kinds of inequality so that society can realise peace.
In his book A Theory of Justice, first published 40 years ago, the renowned philosopher John Rawls proposed the "veil of ignorance". In this thought experiment, he describes a procedure for determining the principles for building a just society: making fair and rational choices that allow us to build an ideal society is possible only if we eliminate personal “conditions”.
But, in reality, as Chi-Wai points out, "If we take away all of those conditions, are we still human?" Although a just society is difficult to define, public policy makers can look at two important indicators. One is whether the policy offers equal opportunity for development; the other is whether people can live with dignity. "Hong Kong society often talks about the starting line. In the past decade there have also been discussions about social capital, all with the goal of reminding people that not everything is a matter of course." For instance, employment opportunities and the language of education for ethnic minorities, the ways children living in subdivided flats study at home, and even local welfare policies such as the amount of Comprehensive Social Security Assistance and universal retirement protection vary for different individuals, just as points of view differ. "The Hong Kong Government has always regarded social welfare as relief, not a right. It helps only the people with the worst living conditions." As for labour-owner relations, local workers have always lacked collective bargaining rights and therefore been unable to fight for better rights and benefits. "The other issue is resource allocation. Does capital accumulation depend on individual or collective achievement? If it depends on the latter, should there be a resource redistribution system?"
Margaret quoted the 16th century philosopher Francis Bacon, who believed that in order to discover the truth, one must eliminate prejudice. “Yet,” she said, "we can't understand the world if we operate in a completely blank state. It is for each generation to carry on making improvements and corrections. Where we start doesn't matter. What matters is whether we’re willing to accept correction."
Chi-Wai believes that a just society starts with human rights; otherwise, there can be no talk of dignity. Analysing the situation from a legal perspective, Margaret believes that human rights are not a lofty ideal, but our most basic need. To enable everyone to live with dignity, society must eliminate some inequalities, and in some cases, legislation will also prove to be necessary. "But we hope that the fewer laws of this kind, the better, because if there are laws, they must be enforced, and that gives the regime even greater power to interfere."
The law approximates justice
In general, people believe that where there are laws, there is justice, and that the two are closely related. As Margaret Ng explained, "In 1997, Henry Litton [a former Hong Kong judge] and I gave a lecture in the United States. He put it this way: ‘The court is not there to do justice; the court is there to do justice according to the law.’ Law is the interpretation of legal provisions. The court cannot view the law through justice; it can only view justice through the law. This comment isn’t necessarily absurd. The law – a system made by people – approximates justice as best possible, meaning justice is a yardstick to measure how close the law gets to justice ideals. Justice means everyone having the right to participate in the discussion and reach a conclusion. This is what gives the law dignity. This is why democracy and the rule of law must go hand in hand. No discussion process means the people enacting the law simply do as they like. If the laws they make become binding reality, that’s tyranny."
Peace and justice are often seen as inseparable, but the relationship between them is not always straightforward. The Ugandan Civil War that took place in the 1980s is an example. Although the rebel guerrilla army numbered just 3,000 soldiers at its peak, more than 2 million people were displaced. In addition to the many killed and injured, the 30,000 or so children abducted not only lost their homes and parents but were trained to be killers. By the early 2000s, the rebel army demanded amnesty in exchange for ceasefire; otherwise, no surrender. "Peace or justice" became a dilemma for the local government and the people. In light of the great suffering endured by all, and to allow child soldiers to reintegrate into society, some civil society groups preferred a ceasefire and amnesty. The Ugandan government chose to invite the International Criminal Court to intervene. To date, the rebel army’s leader has escaped conviction, while those in power have been criticised for relying on the formal justice of the court and lacking motivation to reform. The incident spurred discussions on topics such as "unjust peace", "justice without peace" and "restorative justice".
The value of restorative justice
Teresa Ma, Peace Generation’s founder, believes that "when a country goes through civil war and then places the administration of justice in the hands of a remote and disinterested organisation, errors in judgement are sometimes inevitable and disappointing; but if locals only are charged to deal with the situation, the result may be the victor’s one-sided justice. Afterwards, there will still be repression, abuse of power, and perpetrators who go free. Justice alone, without peace, makes society weak; without forgiveness, moving forward is impossible. Restorative justice is an essential component of peace studies. When a society has undergone massive trauma, the repair process will be long and painful."
Margaret had this to say in response: "Carrying out restorative justice has had mixed results in different places. There may be certain values and principles we can learn from it, but when it comes to distinguishing the thugs from the victims in Hong Kong’s recent string of public security incidents, it’s difficult to generalise. Incidents like these are triggered by social injustices; if we don’t look at the causes before deciding who the culprits and the victims are, peace will be impossible.”
何謂公義，不同社群有不同的理解，Peace Fellowship在第四天邀來本身是大律師的前立法會議員吳靄儀，以及香港社會工作者總工會外務副主席張志偉，與 Fellows討論在司法制度及公共政策之中，如何體現出公義的精神。
在四十年前出版了《正義論》一書的著名哲學家John Rawls曾經提出「無知之幕」（veil of ignorance）的思想實驗，作為訂定公義社會原則的程序，唯有掃除人本身的「條件」，方能進行秉公合理的選擇，建立理想社會。
但在現實中，張志偉提出，「若要拿走一切，我們還是一個人嗎？」 雖然公義社會難以定義，但在制訂公共政策時卻有兩個重要指標，其一是政策能否提供一個平等的發展機會； 另外就要視乎人能否有尊嚴地過活。「香港社會經常談及起跑線，近十年又有社會資本的討論，都旨在提醒，凡事並不理所當然。」諸如少數族裔的就業機會及語文教學，劏房戶孩子如何在家學習； 乃至本地綜援金額及全民退保等福利政策，不同人的處境有別，觀點也都有不同。「香港政府一直視社會福利為救濟而不是權利，只會幫助生活條件最惡劣的一群。」而在勞資關係上，本地勞工也一直缺乏集體談判權而無法爭取更高的權益。「另外就是資源分配問題，資本的累積是靠個人還是集體成果，若是後者，是否應要有資源再分配制度。」
一般認為，有法律便有公義，兩者關係密切。「1997年我和列顯倫一起在美國演講，他曾形容：The court is not there to do justice; the court is there to do justice according to the law。法律是條文的解釋，法庭不能從公義去睇法律，只可以從法律去看公義；這個說法不一定荒謬。法律這種人為制度，只有盡量去接近公義，即用公義去量度法律，看看是否接近公義的理想。而公義是每個人都有權去參與討論並得出結論，如是法律才有尊嚴。所以民主和法治要並行，沒有討論過程，頒佈法律的人想點就點，做出來的法律若變成有約束的事實，就是暴政。」
和平和公義兩者亦經常被視作密不可分，但有時候，兩者關係並不直截了當。以八十年代烏干達內戰為例，當時的叛軍游擊隊在高峰期才約三千人之數，卻造成二百多萬人流離失所，傷亡慘重之餘，戰爭中被拐帶的約三萬名兒童，不但失去父母家園，更被訓練成為劊子手。到二千年代初，叛軍要求以特赦換取停戰，否則絕不投降。「要和平定要公義」成為當地政府和人民的兩難。在經歷了巨大傷痛之後，亦為童兵重新返回社會設想，一些民間團體寧願選擇停戰和特赦，政府則選擇了邀請國際刑事法庭（International Criminal Court）介入。目前，叛軍主腦仍然逍遙法外，當權者被批評依靠法庭形式上的公義，無改革的動力。事件引來「不公義的和平」、「不和平的公義」和「修復性公義」等議題的討論。
「和平世代」創辦人Teresa Ma 認為，「當國家發生內戰時，若由抽離的獨立組織去處理行使公義，有時難免會誤判，結果也時會令人失望；但若由本地人去處理，又有可能變成了勝利者單方的公義，爾後仍會出現鎮壓、濫權、壞人逍遙法外的情況。只有公義沒有和平，社會很脆弱；但沒有原諒也無法行出一步。修復性公義在和平學的範疇內十分重要。當一個社會經歷了很多創傷時，修復過程亦漫長而痛苦。」