Author: Alvin Y H Cheung, NYU

The decision by Hong Kong’s Court of Appeal to drastically and retroactively increase the sentences of activists Joshua Wong, Alex Chow and Nathan Law has prompted widespread international concern. Unsurprisingly, suggestions in international op-ed pages that Hong Kong had created its first political prisoners have prompted a strident public backlash. Commentators ranging from Hong Kong officialsand 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 ofthe 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. 

Article originally appeared in East Asia Forum on 14 September 2017.