Democracy protesters thought they were shielded by the justice system — until Beijing turned it against them.
As Hong Kong prepared to mark the 20th anniversary of its handover to Chinese sovereignty, the pro-independence Hong Kong National Party sent instructions to supporters planning to attend a rally: bring masks both for anonymity and as protection against tear gas, encrypt your electronic devices, and carry a telephone number for legal assistance in case of arrest. The spur for this was the Hong Kong authorities’ prohibition of the rally on the grounds that it violated the territory’s mini-constitution, the Basic Law, which has been in effect since 1997 when Hong Kong returned to Chinese sovereignty. The group had issued this precautionary list with the intention of defying the ban, but it backed down after police threatened the organizer with detention for illegal assembly, despite the fact that he was the sole attendee.
Prominent lawyers are fearful that such actions are eroding Hong Kong’s common law system — a British legacy, along with its black-robed and bewigged judges — upon which the territory’s reputation as an international financial center has long rested, especially in contrast with the murky and politically dominated legal system of the Chinese mainland. “It’s not clear what the legal grounds are for barring this kind of thing,” said Wilson Leung, a barrister and the international liaison officer for the Progressive Lawyers Group. “The Basic Law starts off by saying Hong Kong is part of China, but that’s different from saying anyone who advocates independence is doing something illegal. At the moment, there is no such law.”
Hong Kong’s common law system — which derives from precedent rather than statutes, as in the civil law system that operates in China — is the single most important difference between political and economic life in Hong Kong and the mainland. This British legacy is key to Hong Kong’s attractiveness for foreign institutions and investors, who value the secure legal environment and level playing field ensured by an independent judiciary designed to protect civil liberties. In other former British colonies, like Singapore, courts have increasingly made departures from common law in statute-based areas like company and criminal law, so the fate of Hong Kong’s common law is closely watched as a bellwether of the territory’s future.
That’s why the latest prohibitions have Hong Kong’s democrats worried. This episode is just the most recent dubious use of the law to target local leaders espousing self-determination or Hong Kong independence. Hong Kong’s “localist” cause emerged most strongly in the wake of the 2014 Umbrella Movement when democracy activists occupied some of the territory’s main thoroughfares for 79 days.
But the activists are trying to use the law to fight back. The convener of the Hong Kong National Party, Andy Chan Ho-tin, has argued that his treatment violates his human rights, including freedom of speech and association as protected by Article 27 of the Basic Law, and is using the court system to challenge government decisions. The fact that such legal remedies exist underlines the radical differences between Hong Kong and the mainland, where such resistance almost inevitably leads to detention or even jail.
Chan has been forbidden from registering his party, opening a personal bank account, and even from operating a stall at a Lunar New Year fair. Last November, prior to the Legislative Council elections, he was one of six potential localist candidates disqualified from running, ostensibly for refusing to sign a form declaring Hong Kong an inalienable part of China, though other pro-democracy candidates who did the same were still permitted to stand. “I was asked to sign the form, but I turned it down,” said the Civic Party’s Alvin Yeung, a barrister elected to the legislature. “We fielded 7 candidates. None of them signed it.”
The Hong Kong government’s recent aggressive use of legal tools to undermine localist politicians is now sparking comparisons to countries with far shakier legal reputations. “Are we already in a Singapore-type situation where justice is not being applied equally? You may say so,” Yeung concluded, adding that anyone attempting to launch legal challenges to such government decisions faces crippling legal bills and potential bankruptcy. “I would say it’s rule of law but at a discount. It’s a cut-rate rule of law. There’s a sliding scale, and I think Hong Kong is declining in that respect.”
Hong Kong’s justice secretary, Rimsky Yuen Kwok-keung, has lashed out at criticisms. Yuen himself is likely the most politicized justice minister in the territory’s history, having accepted a position in 2008 as a Guangdong delegate to a mainland advisory body known as the Chinese People’s Political Consultative Conference that largely rubber-stamps Chinese Communist Party proposals. In a China Daily article to mark the anniversary titled “HK shines when it comes to rule of law,” he drew attention to global benchmarking including the World Bank’s Worldwide Governance Indicators project, which found that in 2015 Hong Kong outranked 94.7 percent of 113 countries and regions when assessing rule of law. Yuen told the China Daily, a Chinese state-run propaganda outlet, “I would invite you to make a distinction between mere assertions on subjective perception on the one hand and objective facts on the other.”
Despite the disqualifications, localists won six seats and nearly 20 percent of the vote in the elections. But two localist lawmakers who asserted that Hong Kong was not part of China in their oath-taking ceremony were quickly ousted from the legislature. The ruling by Hong Kong’s Court of First Instance was preempted by a rare interpretation of the Basic Law by mainland China’s Standing Committee of the National People’s Congress. The duo has appealed to Hong Kong’s Court of Final Appeal, asking the court to consider the validity of the interpretation.
For opponents, the damage done to the law itself by this episode is as harmful as the ousting of the legislators. Dubbed the legal equivalent of a “nuclear weapon” by Yeung, the legal intervention by the Standing Committee — the fifth such intervention since 1997 — effectively preempted judgments by Hong Kong’s own courts. This prompted a silent protest march by Hong Kong’s legal professionals. Lawyer and former Democratic Party leader Albert Ho Chun-yan characterized such interpretations as “unscrupulous,” issuing a warning that “Hong Kong is now in jeopardy: our system, our rule of law, and the integrity of our judicial independence.”
On Friday, four more legislators were disqualified over their oath-taking ceremonies following a number of judicial complaints lodged by private citizens, including a pro-Beijing taxi association member. None of the four advocate independence; the acts that led to their ouster included quoting Mahatma Gandhi and reciting the oath extremely slowly over a period of almost 10 minutes. The lawmakers were in the middle of a Legislative Council meeting when a High Court announced its ruling, which was retroactively applied to November 2016, potentially saddling the four with enormous legal bills. The four have called the ruling a “declaration of war,” and said its effect is to allow the National People’s Congress to rewrite Hong Kong’s election results.
The use of judicial reviews for political aims was instrumental in dismantling the tent encampments that sprouted on Hong Kong’s flyovers in the 2014 Occupy Central movement. Local taxi and bus operators, many of whom operate cross-border transport links and tend to be pro-Beijing in their outlook, turned to the courts in a process that top judge Henry Litton and the dean of Hong Kong University’s law faculty, Johannes Chan, both criticized as curious in its fidelity to China’s political aims.
China’s increasing reliance on private actors in Hong Kong to serve its political ends there could be characterized as legal astroturfing, according to Alvin Cheung, a barrister researching Hong Kong’s rule of law issues at New York University. He explains: “AstroTurf is fake grass, and ‘astroturfing’ means to create a fake grassroots movement. At least some of this, particularly the taxi drivers, is pretty much the legal equivalent of that.”
Cheung argues that a “dual state” is emerging in Hong Kong, where a “normative state,” in which the bureaucracy and judiciary abide by the rules, operates alongside a “prerogative state” governing spheres deemed to be political and not subject to legal restraint. This concept was first outlined by German political scientist Ernst Fraenkel to describe the Nazi regime, which he was forced to flee. It also has clear parallels in today’s mainland China, where a growing body of legislation seeks to enshrine principles of order and consistency, but is overseen by a party operating above the law, especially in cases with national security implications. In remarks delivered to the Council on Foreign Relations, Cheung asserted that in relation to Hong Kong, “Beijing’s increasingly capacious definition of ‘national security’ is the major driving force behind these developments.”
National security was at the heart of Chinese President Xi Jinping’s trip to Hong Kong to mark the anniversary of its handover, underlined by his inspection of troops at the biggest military parade since the handover. It was a show of force aimed at intimidating the nascent independence movement. In his speech, Xi explicitly warned Hong Kongers to toe the line, saying, “Any attempt to endanger national sovereignty and security, challenge the power of the central government and the authority of the Basic Law of the HKSAR, or use Hong Kong to carry out infiltration and sabotage activities against the mainland is an act that crosses the red line and is absolutely impermissible.”
Recent public statements by China’s top officials have added to the sense of alarm. A Foreign Ministry spokesman marked the anniversary by asserting that the Joint Declaration governing Hong Kong’s return is a historical document with no “practical significance,” while China’s No. 3 leader Zhang Dejiang recently rejected the separation of powers in Hong Kong and insisted on Beijing’s power to supervise and assess legislation, in comments that raised fears about China’s intentions. But Hong Kong’s lawyers continue to put their faith in the system that has served the territory for so long. “It’s as clear as daylight that there is separation of powers in Hong Kong,” said Dennis Kwok, who represents the legal sector in the Legislative Council. “It’s ludicrous for anyone to suggest that there isn’t. The chief executive can’t tell us what to do in the Legislative Council. They certainly can’t tell judges what to do. And we can’t tell the judges what to do. Judges’ checks and balances are by way of judicial review. No amount of rhetoric can change that.”
Beijing’s hand could be strengthened by Hong Kong’s lack of recourse, as illustrated most poignantly when five Hong Kong booksellers publishing politically sensitive material were abducted to the mainland last year. The international response amounted to little more than hand-wringing, with the United Kingdom expressing generic concern about the “integrity of Hong Kong’s law enforcement.” That this act of extraordinary rendition across international borders should raise so little outcry could embolden a salami strategy of slicing away at Hong Kong’s rule of law one thin cut at a time.
Yet the biggest test for Hong Kong is fast approaching: a new battle over the national security law known as Article 23, which would ban treason, sedition, succession, or subversion against the central government. On her first day of work, the territory’s new chief executive, Carrie Lam, said the Hong Kong government would be failing if it did not adopt the controversial legislation, though she did not set out a time frame. The last attempt to introduce the law, in 2003, brought half a million people out on the streets. This time round, tensions are higher still following the tumult of the Occupy movement, and a draconian version of the bill could precipitate another round of large-scale street protests, which ironically would serve to underline the need for such legislation in Beijing’s eyes.
For 20 years, the mantra governing the relationship between Beijing and Hong Kong has been “one country, two systems.” The implementation of Article 23 will test the extent to which “one country” takes precedence over “two systems” while increasingly assertive behavior by Beijing and its proxies in Hong Kong could further imperil the territory’s weakening rule of law. As legislator Alvin Yeung put it, “‘One country, two systems’ is not a slogan. It’s an experiment in whether those in power can resist the temptation to interfere.”
Article originally appeared in Foreign Policy on 18 July 2017