Commentators ranging from Hong Kong officials and committed Beijing apologists to retired judges and senior members of the legal profession have dismissed suggestions that Hong Kong’s judicial independence has been undermined. Yet the focus of public commentary on the role of the judiciary should not obscure three lingering questions about the future of rule of law in Hong Kong.
First, what sort of law is being applied? Wong, Chow and Law were convicted of an offence under the Public Order Ordinance — an ordinance that violates Hong Kong’s international law obligations to guarantee the right of peaceful assembly. The principles adopted by the Court of Appeal in handing down sentences were also problematic — all three of the English cases invoked by the Court of Appeal involved much more serious violence. More worryingly, the Hong Kong court’s judgment condemned an ‘unhealthy wind’ of civil disobedience — rhetoric more befitting of an op-ed than a judgment.
The legal system in Hong Kong may remain a common law system, but the mere fact that a legal system is based on the common law does not — as Singapore demonstrates — ensure that its substantive content will adequately protect fundamental rights. The increasingly convoluted attempts by Hong Kong officials and mainland Chinese academics to argue that advocating for Hong Kong’s independence is not protected by freedom of expression is further evidence of a concerted push by Beijing to impose an authoritarian common law on Hong Kong.
Second, is the law being applied even-handedly? The court proceedings against protesters and activists suggest a pattern of partisan application of the law by the Department of Justice under Secretary for Justice Rimsky Yuen. The decisions of whether to prosecute, what charges to pursue, and in which court to pursue them — and therefore what sentences are available — are all made by the Department of Justice. So too was the decision to challenge the original sentences imposed on Wong, Chow and Law — a decision that Yuen, who is a political appointee, apparently made in defiance of the advice of senior prosecutors.
Yet the Department of Justice has largely refrained from seeking reviews of other far less severe sentences handed down in respect of violence by police officers and pro-Beijing thugs during the Umbrella Movement. Against that background, Yuen’s dogged pursuit of pro-democracy politicians and activists in a campaign that would disqualify many of them from office due to incarceration or bankruptcy speaks volumes. For Yuen to hide behind claims of ‘judicial independence’ is a repudiation of his Department’s duty to exercise prosecutorial discretion in the public interest.
Third, does it look like justice is being served? Many of the same commentators who have leapt to the judiciary’s defence on this occasion have not been nearly as vociferous in criticising Beijing’s long-running campaign to bring the city’s judges to heel.
The National People’s Congress Standing Committee has ‘interpreted’ the Basic Law (the city’s constitutional instrument) of its own accord on numerous occasions, short-circuiting pending litigation or even — as with the 2016 ‘interpretation’ relating to oath-taking by legislators-elect — dictating outcomes to Hong Kong courts. Mainland officials and academics have also been quick to ‘other’ Hong Kong’s common law system, declaring it a colonial relic and directing racial attacks at judges not of Chinese descent. Nor has Beijing hesitated in overtly demanding political loyalty from Hong Kong’s judges: it declared them ‘administrators’ in a 2014 White Paper and called for ‘mutual understanding and support’ among the three branches of government. Even if one accepts that political pressure did not influence the Court of Appeal in sentencing Wong, Chow and Law to prison, it would be foolhardy to deny that Beijing has exerted such pressure in the first place.
The refusal of Yuen and of others in the Hong Kong government to face these questions bodes ill for the city’s rule of law. It points to an even more fundamental question: just what is the rule of law in Hong Kong for? Worryingly, Yuen appears to believe that it is only valuable insofar as it is ‘good for business’. Speaking in defence of a part of Hong Kong’s express rail terminus being governed by Chinese mainland law, he declared that ‘Hong Kong’s legal system cannot be allowed to get in the way of progress’. Such a mindset poses a far greater threat to Hong Kong’s rule of law than an op-ed in a Western newspaper.
Alvin Y H Cheung is an Affiliated Researcher at the US–Asia Law Institute at New York University, a JSD student at New York University, and a member of the Progressive Lawyers’ Group in Hong Kong.
This is an interesting piece but there is more than meets the eye.
1 The writer asked an important question: “(j)ust what is the rule of law in Hong Kong for?”
The rule of law in Hong Kong ensures that everyone is treated equally and that no one is above the law, not even the three pro-democracy student leaders. They were sentenced by the Court of Appeal for six to eight months in jail for storming the government HQ compound at Tamar. It was an illegal protest in 2014 which turned violent and caused 79 days of chaos in downtown Hong Kong, where shop-owners and traders lost billions of dollars in sales, never mind the inconvenience to and safety of the majority of the people of Hong Kong, who did not support these hooligans.
2 In 2014 Hong Kong ranked 16th in the world for its Rule of Law – three places ahead of the United States. Lest we forget, during the Japanese colonization of Hong Kong from 1941 to 1945, there was no rule of law. Pro-democracy student leaders staged a protest at the risk of their own lives.
3 In my view, the three got away with a pretty light sentence because during the 1967 riots, when colonial Hong Kong came to a standstill for four months, Mr Raymond Young, now a Hong Kong film publisher, was jailed for 18 months by the colonial court when he was only 16 years old, for allegedly handing out ‘inflammatory leaflets’ to fellow students during the riots. About 2,000 people were also jailed by the British.
4 Here are what the Judges said about the 2014 case:
Vice-president Wally Yeung Chun-kuen:
“To disrupt public order and public peace in the name of free exercise of powers will cause our society to descend into chaos. It will bring negative impact to societal improvement and development, and prevent others from exercising their powers and freedoms. If such a situation is not effectively curbed, all talk of freedom and the rule of law will be empty.”
Justice Poon Shiu-chor:
“The respondents cannot say that they were convicted and sentenced for exercising their rights to freedoms of assembly, protest and speech. They are convicted and sentenced because they overstepped the boundaries of the law, and used seriously unlawful methods to gain forcible entry or incite other people including youngsters and students … to a place which they had no right by law to enter.”
Justice Derek Pang Wai-cheong:
“To treat long-standing and effective laws as unreasonable restrictions obstructing the freedom of expression, and to feel good about it after breaking the law as one wishes – such conduct does not allow the court for any reason to handle it with excessive leniency. People who hold such views not only break the law in conduct, but despise and transcend the law in spirit.”
5 So who are backing these pro-democracy student leaders? In his 1st October 2014 piece “Hong Kong’s ‘Occupy Central’ is US-backed Sedition”, Bangkok-based geopolitical researcher and writer, Mr Tony Cartalucci, wrote:
“Whatever grievances those among “Occupy Central’s” mobs may have, they have forfeited both their legitimacy and credibility, not to mention any chance of actually achieving progress. The goal of “Occupy Central” is to make Hong Kong ungovernable at any cost, especially at the cost of the people living there – because that is the goal of those funding and ultimately directing the movement from abroad.”
6 American strategic-risk consultant, author and lecturer, Mr F. William Engdahl wrote in his 24th October 2014 piece ‘Hong Kong’s Umbrellas are made in USA’:
“With almost by-now-boring monotony, Washington has unleashed another of its infamous Color Revolutions. US Government-steered NGOs and US-trained operatives are running the entire Hong Kong “Occupy Central” protests, ostensibly in protest of the rules Beijing has announced for Hong Kong’s 2017 elections. Behind these Hong Kong faces, the US State Department and its favorite NGO, the US Congress-financed National Endowment for Democracy (NED), via its daughter, the National Democratic Institute (NDI), is running the Occupy Central operation.”
7 During 150 years under the disgraceful British colonial era all the 28 Governors were appointed by Britain. Now the Chief Executive is elected under the Basic Law. Why is that not an improvement?
8 Facts published by the Hong Kong Govt show that Hong Kong’s GDP soared from HK$1.373 trillion in 1997 to 2.489 trillion in 2016, a rise of 81.2%, defying the doomsayers, who predicted a capital-flight after the handover to China on 1 July 1997. Hong Kong’s economy under China must be doing something right.
9 According to British author Mr Martin Jacques: “A 2016 Chinese University of Hong Kong poll showed 17% supported independence from China, nearly 60% opposed independence and 23% were “ambivalent”.
10 In a piece ‘China is Hong Kong’s future – not its enemy’ published in the Guardian on 30 September 2014, Mr Jacques opined: “If China needed Hong Kong in an earlier period, this is no longer nearly as true as it was. On the contrary, without China, Hong Kong would be in deep trouble.”
His prescient prediction is coming true because Hong Kong’s economy relative to China’s GDP has fallen ominously from a peak of 27% in 1993 to just 2.9% in 2016.