How Beijing Is Working to Smother Hong Kong’s Rule of Law
Editorial cartoon appearing recently on Hong Kong social media.
By Patrick McShane
In these occasional reports, Digital Privacy News examines the fallout of China’s national security law on Hong Kong.
For 156 years, before Hong Kong’s return to Chinese control in 1997, and until last June, the people of this city respected the rule of law.
Now, however, Beijing appears to be determined to disable Hong Kong’s long-held Western notion of jurisprudence and replace it with the mainland system, where all law is subject to control by the Chinese Communist Party (CCP).
In the nearly 12 months since Beijing imposed its national security law (NSL) on Hong Kong, much of this city’s society — from its police and civil service system to its education sector and political practices — have fallen to Beijing’s control.
Despite these successes, Beijing understands that if the CCP cannot get a hard handle on the city’s long-established rule of law, there is still a substantial risk that Hongkongers can challenge its most oppressive political policies in court.
Nine years ago, retiring Hong Kong Judge Kemal Bokhary, who was a permanent judge of Hong Kong’s Court of Final Appeal, warned that “a storm of unprecedented ferocity” was coming for Hong Kong’s rule of law.
That storm has arrived.
If Beijing succeeds in replacing the city’s rule of law with the mainland’s system, Hong Kong citizens charged with a crime will be presumed guilty until proven innocent.
On the mainland, the CCP’s demand for order and stability overrides the quest for justice and equality before the law in cases where it feels threatened.
When this happens, China’s 72-year-old criminal justice system loses autonomy. The CCP dismisses the mandate for the rule of law to make room for the party’s political needs.
But this hardly is new in China.
Over the decades, trial judges have been changed in thousands of cases — even in mid-trial — with defense attorneys fired and verdicts overturned.
Most times, defendants do not get to hire lawyers. And, even then, such attorneys often do not meet clients until the day of their cases.
In fact, on the mainland, the CCP easily manages such changes, because all senior judges, state prosecutors and public defenders are party members.
“There is nowhere for me to hide in this country.”Ren Quanniu, Chinese attorney disbarred for representing Hong Kong democracy activists.
Under the Chinese Constitution, the CCP-controlled National People’s Congress has the authority to supervise the work of judges and their courts — and to call for the reconsideration of cases.
In China, the concept of juries does not exist.
According to the China Justice Observer, in 2019, the conviction rate in the People’s Republic was 99.965%.
Here are some of the ways Beijing is replacing Hong Kong’s legal system with one more closely resembling China’s.
Judges as Civil Servants
On the Chinese mainland, most of the population understands — and accepts — that judges are regarded by the central government as senior civil servants, whose first duty is to the government itself, not necessarily to the letter of the law.
Now, however, under the national security law, Beijing is pressuring Hong Kong’s legal system to accept this concept, thus aligning the city’s system with the mainland’s legal norms.
This reality was confirmed two weeks ago, when Yang Zhen-wu, secretary general of the National People’s Congress Standing Committee (NPCSC), briefed judges visiting from Hong Kong.
Yang told Hong Kong’s Chief Justice Andrew Cheung that he hoped the Hong Kong justices had “an accurate understanding” of the Chinese constitution and other legal documents drawn up by the central government, according to news reports.
Yang also told the group that Hong Kong’s judges were expected fully to enforce the concept of “patriots governing Hong Kong” and to “exercise a vital judicial function” to safeguard national sovereignty and security.
Phil Chan, a U.K. human rights law scholar, told Hong Kong’s South China Morning Post: “The visit by (Hong Kong’s) chief justice and the remarks by the NPCSC’s secretary general illustrate the subservient role of Hong Kong’s judiciary in China’s vision for its new governance of the city.”
Trials Without Juries
Prior to the NSL being imposed on June 30, most criminal cases in Hong Kong were jury trials.
However, since then, most pro-democracy supporters accused of breaching the NSL have been denied trials by jury.
This includes Tong Ying-kit, 24, who became the city’s first national security defendant on July 1.
In handing down the no-jury ruling, Hong Kong Judge Alex Lee — one of the jurists designated by the government to handle special NSL cases — said that, unlike in the U.K., a defendant did not have a right to have his case tried by a jury.
“If the trial is to be conducted with a jury,” Lee added, according to news reports, “there is a real risk that the due administration of justice might be impaired.”
In February, Hong Kong’s pro-Beijing justice secretary, Teresa Cheng, told Tong’s defense team that her department planned to try him without a jury.
She cited fears for the “personal safety” of jurors and their families.
Instead, his case will be tried June 23 by three appointed NSL judges. Tong has been held in jail since July 2020.
Before last June, the case would have been heard by a judge and seven to nine jurors.
However, Cheng invoked Article 46 of the NSL. It states that the secretary can command that a national security case be heard without a jury if it involves state secrets or foreign forces.
Aside from being refused a trial by jury, Judge Lee rejected Tong’s bail, deeming him a “flight risk” and a “risk of re-offending.”
The specifics of Lee’s conclusion later were redacted in the judge’s decision.
Tong is accused of knocking down three police officers, while riding his motorcycle, on July 1 — the day the NSL took effect. He also allegedly waved a protest flag with the slogan, “Liberate Hong Kong, revolution of our times.”
If convicted of terrorism and incitement to commit secession, Tong could face life in prison.
No Bail for Political Crimes
In societies around the world, wherever the rule of law exists, courts routinely grant bail to the accused — in the belief that defendants are innocent until proven guilty in court.
The only reasons for bail being withheld were if a court deemed the accused a possible danger to the community, or to themselves.
This has been the case in Hong Kong for 180 years, until June 30, when the NSL was announced.
Since then, the special NSL division of the Hong Kong Police has arrested slightly more than 100 people.
Thus far, 57 have been charged, with the overwhelming majority being pro-democracy lawmakers or young activists.
Most remain in jail, pending trial. They include the publisher of the pro-democracy Apple Daily newspaper, Jimmy Lai, 72.
Many Hongkongers believe the selective application of the law serves no purpose, except to deliberately intimidate the public.
In some cases, denial of bail — even for brief periods, for humanitarian purposes — verges on cruelty.
Former Democratic Party lawmaker Wu Chi-wai is being held in custody. He awaits three separate trials, charged under the NSL.
Last month, the 58-year-old Wu asked permission to attend his father’s funeral.
Wu, an only son, even offered to be handcuffed and to wear his prison clothing and was prepared to stay for just five minutes.
However, after a risk assessment, Hong Kong’s Correctional Services Department told him it had rejected the application — citing the need to protect the safety of the correctional officers, the person in custody and members of the public.
Pro-government politician Gary Chan, who oversees the Legislative Council’s security panel, approved the ruling.
“You have to take into account that Wu is accused of possibly breaching the national security law,” Chan said.
The correctional services department said it did not keep records of how many such applications were approved — but at least one convicted murderer previously had been allowed to attend his parent’s funeral, according to news reports.
After public outrage, authorities eventually relented — allowing Wu to attend the May 8 funeral, under close watch by officers before being returned to prison.
Disbarring Lawyers Who Defy Beijing
In mainland China, it is almost routine for lawyers who actively defend dissidents be disbarred. The most recent case involves mainland Chinese attorneys Lu Siwei, and Ren Quanniu.
They were disbarred earlier this year when they agreed to handle the cases of a dozen Hong Kong democracy activists who were jailed after being caught while trying to flee the city in a boat bound for Taiwan.
Speaking to Radio Free Asia in February, Ren said the decision to strip him of his license had left him with no illusions about the current political system.
“Before I was suspended, I still clung to some illusions about the state judicial system,” Ren said in the Feb. 15 interview. “That they cared about facts and about the law.
“But there is nowhere for me to hide in this country,” he continued. “Things just seem to get worse.”
Now Beijing appears to be introducing a similar policy in Hong Kong for any local attorney who defies Beijing’s plans.
Two of the city’s most respected lawyers, Martin Lee and Margaret Ng, have had their law licenses threatened after they were convicted of organizing a peaceful but unauthorized assembly in 2019.
Early this year, the 82-year-old Lee was nominated for the Nobel Peace Prize. The winner is expected to be announced in October.
Bar Association Under Fire
In June 2019, some 3,000 lawyers, many of them members of the Hong Kong Law Society, marched in the suffocating summer heat.
They were taking part in a silent protest against the government’s controversial extradition bill, which would allow Beijing to try Hong Kong residents inside mainland courts.
Fast-forward a year: Beijing has called for the removal of the chairman of the 72-year-old Hong Kong Bar Association.
The head of the 1,500-strong professional body, British-born Paul Harris, suggested the possibility of getting “the Hong Kong government to agree to some modifications” to the NSL.
“If there are … complaints about the (bar) association not acting in accordance with Hong Kong law, then of course the government will be called into action.”Hong Kong Chief Executive Carrie Lam.
Calling Harris, who has lived in Hong Kong for 28 years, “an anti-China politician,” the Chinese Liaison Office in Hong Kong warned of consequences if the association did not replace him.
While many of its members reportedly are believed to support the Oxford-educated Harris, others are just as fearful of not placating Beijing’s demands.
Hong Kong Chief Executive Carrie Lam said in April that her administration saw no role in the bar association’s affairs, but she warned: “If there are … complaints about the association not acting in accordance with Hong Kong law, then of course the government will be called into action.”
Patrick McShane is a longtime resident of Asia.
- Apple Daily: Hong Kong’s top court should help ensure social stability: senior Beijing prosecutor
- Big News Network (Using Xinhua, the New China News Service): Hong Kong judiciary delegation visits Beijing
- Canadian Business News: Hong Kong court denies jury trial to first person charged under national security law
- China Justice Observer: What is the Conviction Rate in China? – China Law in One Minute
- The Diplomat: The ‘China Model’ Is Expanding in Hong Kong
- Hong Kong Free Press: Hong Kong court denies bid for jury trial by city’s first national security defendant
- Hong Kong Standard: There’s no need for jury in security trial, judge rules
- Radio Free Asia: Disbarred Chinese Rights Lawyers ‘Have No Regrets’ After Losing Licenses
- Republic World: Nearly 2000 Civil Servants Quit In 2020-21 In Hong Kong, Highest In 15 Years
- South China Morning Post: Hong Kong chief justice urged to implement national security law, ensure ‘patriots’ govern city in first Beijing meeting with China’s top judge