Jailing of activists: Foreign critics undermine HK rule of law

September 04, 2017 16:29
An independent judiciary plays a key role in maintaining Hong Kong's high degree of autonomy. Photo: China Daily

More than 20 years ago, in the run-up to Hong Kong’s handover to China, rumors were rife that the city was finished. Fortune magazine published the infamous The Death of Hong Kong article. Books appeared with such titles as The Fall of Hong Kong, The End of Hong Kong and The Last Days of Hong Kong.

Fortunately, that prediction turned out to be dismally wrong. In the last 20 years, Hong Kong has done quite well and its residents’ rights and freedoms have been largely protected.

To a large extent this was due to the rule of law, underpinned by an independent judiciary, a legacy of British rule. This differentiates Hong Kong from mainland China, where the Communist Party controls the courts.

But this system is now being undermined, ironically by people in the West who mean Hong Kong well.

Many of them, suspicious of China and its attempts to control Hong Kong, jumped to the conclusion that Beijing had successfully brought the Hong Kong government and the judiciary to heel after the Court of Appeal imposed custodial sentences on three activists, Joshua Wong, Nathan Law and Alex Chow.

After the imposition of prison sentences ranging from six to eight months for illegal assembly, there were immediate charges of political persecution by human rights groups and others. A group of 20 international figures, including former British Foreign Secretary Malcolm Rifkind, signed a joint statement calling the decision “an outrageous miscarriage of justice” and “a death knell for Hong Kong’s rule of law and basic human rights, and a severe blow to the principles of ‘one country, two systems’ on which Hong Kong was returned to China 20 years ago”.

The final charge – that the judgment violated the “one country, two systems” formula – made it clear that the signatories saw China’s hand behind the court’s decision. That is to say, in their minds the judges, instead of applying legal principles, had bowed to Chinese political pressure.

It is worth noting that the judgment of which so many have been so critical wasn’t available in English until two weeks later. That is to say, the critics did not bother to read the legal reasoning provided by the judges for their conclusion that the trial magistrate had erred.

Fortunately, and significantly, the Hong Kong legal community, which was been at the forefront in the struggle for maintaining the rule of law and against Chinese political interference, has come out strongly in support of the court’s decision against foreign critics.

The Hong Kong Bar Association and the Law Society of Hong Kong issued a rare joint statement. In it, they said that “decisions by the Hong Kong Courts are made solely according to law upon applications by one party or the other”.

“We see no indication otherwise in respect of the recent cases which have generated widespread comment,” they declared, adding: “Unfounded comments that judicial decisions were made or influenced by political considerations originating outside Hong Kong are unjustified and damaging to our legal system, and to Hong Kong as a whole.”

Grenville Cross, former director of public prosecutions, also supported the custodial sentences. Commenting on the case, he wrote: “Although this was a serious public order offence, the trial magistrate failed to reflect this in her sentences. She imposed community service orders on two of the men and a short suspended prison sentence on the third.”

He added: “For as long as it remains the case that everyone is equal before the law, there cannot be one type of sentence for political activists and another for other lawbreakers.”

The three men are appealing to Hong Kong’s top court. However, the Court of Final Appeal is in an invidious position. Legal reasoning, it appears, is irrelevant for even eminent world figures will view the court’s decision through a political lens.

Hong Kong is struggling to maintain the high degree of autonomy that it was promised. In that struggle, the independent judiciary plays a role that cannot be overstated. Telling the world that the game is over, that “one country, two systems” is no longer in existence, that Hong Kong is just another Chinese city and that the rule of law is gone and the judiciary is no longer independent cannot by any stretch of the imagination be deemed as helpful to Hong Kong’s struggle.

Overseas support is important for the former British colony, but Hong Kong’s friends overseas should realize that undermining the one institution that is its biggest asset is not the way to go about it.

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Frank Ching opened The Wall Street Journal’s Bureau in China in 1979. He is now a Hong Kong-based writer on Chinese affairs.