Jimmy Lai escorted by police on December 12.
Photographer: Paul Yeung / Bloomberg
Photographer: Paul Yeung / Bloomberg
For decades, Jimmy Lai embodied the spirit of defiance in Hong Kong. He fled communist China at the age of 12 to work in a garment factory, launched a pro-democracy media empire after the 1989 Tiananmen Square crackdown, and became one of the world’s best-known critics in Beijing.
The city had another look at Lai on a recent Saturday in December: tied to his wrists with a metal chain around his waist, the 73-year-old slowly mingled in the yard, flanked by two correctional officers.
prosecutors accused Lai under a comprehensive national security law imposed by Beijing in June, saying he had cooperated with foreigners in demanding sanctions against China. The judge – one of those appointed by the Hong Kong leader to hear the security law cases – denied bail while giving the prosecution more time to review media interviews and about 1,000 tweets for more evidence. The Hong Kong High Court finally granted Lai bail on December 23, provided he stays at home and avoids giving interviews or posting on social media.
Lai’s trial, which denies committing wrongdoing, will test how drastically Hong Kong has changed in the last six months. After decades of enjoying freedoms that do not exist in mainland China, financial center residents are now facing criminal prosecution for expressing political views that threaten the Communist Party – a breach of China’s promises when Britain handed over the former colony in 1997. .
The courts are at the forefront of this conflict between two very different legal systems: one that aims to keep the Communist Party in power and another that stems from the English common law tradition that aspires to treat everyone equally before the law. Chinese police, prosecutors and courts answer to a secret committee of the Communist Party, and the authorities can hold suspects in cases of national security for long periods of time, without trial.
According to data compiled by Bloomberg, only one of the 40 people arrested so far by the new national security unit of the Hong Kong police has been accused of violence. About three-quarters were detained for political statements, such as suggesting foreign governments to impose sanctions on Hong Kong or repeating slogans considered pro-independence in Facebook comments, protest songs or on banners displayed in public. Others were transported for financial crimes, including mass funding for protesters.
With the start of the first legal security proceedings next year, Hong Kong’s independent judiciary appears as Beijing’s last control of power. This year, China has tightened control over the executive branch and disqualified some pro-democracy lawmakers – prompting the rest of the opposition to resign en masse last month.
Cold speaking
Only one of the 40 people arrested by the Hong Kong National Security Police Unit has been detained for an alleged violent crime
Source: Bloomberg analysis of Hong Kong police data as of December 7
Now, Beijing officials are trying to tighten their grip on the judiciary. Zhang Xiaoming, deputy director of the Chinese cabinet-level office in Hong Kong and Macau, signed last month that China will make several unilateral changes to the Basic Law – the mini-constitution of the territory – while proposing unspecified judicial reforms. In remarks to legal professionals, he said that “the word ‘patriotic’ should be added before the fundamental values of democracy, freedom and human rights upheld by Hong Kong society.”
“The Communist Party considers the judiciary to be different from that of Western democracies,” said Dongshu Liu, an assistant professor of Chinese politics at the University of Hong Kong. “From their perspective, the judiciary should be part of the governing forces working in tandem to achieve a political policy. As for Hong Kong, they understand that the system is different, but they are worried that the independent judiciary is undermining their control. “
To date, Hong Kong judges have continued to demonstrate their independence. While magistrates and judges convicted about half of the 826 people who completed court proceedings, this is only a fraction of the more than 10,000 people arrested by police during last year’s pro-democracy demonstrations before the security law came into force. in force. Police have finally dropped charges against more than 2,300 protesters, and another 5,000 are on bail or have been resolved by a police warning.
Mass arrests
Less than a quarter of Hong Kong police ‘10,171 arrests in protest go to court
Source: Hong Kong police data for June 9, 2019-November. 30, 2020; Bloomberg calculation
However, the new security law risks undermining the city’s hard-earned legal reputation, with provisions similar to those in mainland China used to detain people for vaguely defined political crimes. This could have important repercussions for international companies: the World Economic Forum polls show that Hong Kong’s judicial independence helps sustain its position as one of the world’s most competitive economies.
“There is no doubt that the institutional framework in Hong Kong has deteriorated,” said Max Zenglein, chief economist at the Mercator Institute for Chinese Studies in Berlin. “Hong Kong has lost much of its international appeal. It is no longer the “world city” of Asia, but rather the most global city in China. “
“Extremely small minority”
Forced on the city without debate in the local legislature, the full text of the national security law was first unveiled at midnight on June 30 – at the same time as it came into force. Framed as an antidote needed to restore stability, the legislation claims global jurisdiction to ban secession, terrorism, subversion and collusion with foreign forces.
Hong Kong Executive Director Carrie Lam said in June that the law would only punish “an extremely small minority” while rejecting foreign criticism. However, in a clear break from the past, Beijing also weighs in on Hong Kong court decisions, praising satisfactory rulings and using friendly media to criticize others.
In November, Ta Kung Pao, who is being held by the Chinese government through his Hong Kong Liaison Office, criticized Judge Anderson Chow after ruling against the police. “The bullies govern, there are no human rights for the police,” the headline said. The story was next to a cartoon of a protester waving a gun in front of a police officer and said “The judge supports me!”
Even more worrying may be the way in which Beijing has recently circumvented the fundamental law governing Hong Kong-China relations. Last month, China’s top legislature adopted a resolution disqualifying any Hong Kong parliamentarians who are not considered loyal enough, which the local government imposed instantly.
“This could have very real implications for the independence of the judiciary,” said Thomas Kellogg, executive director of the Georgetown Center for Asian Law. “In decision-making cases, judges can now ask themselves, ‘If Beijing does not like a particular outcome, will it use its constitutional authority to overthrow it? ‘ “
In response to questions from Bloomberg, the Justice Department said it had condemned the attacks on judges and was ready to judge the court’s contempt where necessary. He also said prosecutors were not influenced by “irrelevant political or other considerations” and rejected general criticism of the low rate of convictions among protesters arrested last year, saying it was “too early” to conclude that the majority cases were discarded.
The department “does not tolerate or accept acts that claim to influence or interfere with the independent exercise of judicial powers,” he said. The agency also said that judges appointed by the chief executive to rule on national security cases “remain independent and impartial”, rejecting criticism of the practice as “absolutely absurd”.
An Australian judge sitting on the bench in Hong Kong has resigned after the security law was passed, while the United Kingdom is investigating whether to remove British judges from the Hong Kong Final Court of Appeal. Veteran lawyers say their younger colleagues could join a growing number of Hong Kong residents leaving the territory, including former parliamentarians and young protesters seeking asylum abroad.
London Calling
Nearly 60,000 BNO passports for Hong Kong residents were approved in October
Source: British government
Even so, some democracy activists, such as Jocelyn Chau, still trust the courts, despite criticizing the way some protest cases have been handled. In August 2019, the 24-year-old community activist was approached by two police officers and arrested for broadcasting a peaceful neighborhood assembly live. She was accused of assaulting officers, rather than vice versa.
In his verdict dismissing the charges, Magistrate Stanley Ho robbed the two officers of being “knights” and “irritated” when asked about their “unreasonable, illogical” testimony, which he said was contradicted by video recording of the incident. “The two police officers seem to describe a situation from another time and space,” he wrote.
She is now pursuing charges of assault against even the officers who arrested her. “In Hong Kong, we can continue to fight for justice,” she said.
‘Dog’
However, pro-China groups attacked Ho for his judgment, with red graffiti springing up in Hong Kong calling him a “dog.” Some demonstrated in front of the High Court with a banner criticizing.
Tensions will worsen as Hong Kong people look more closely at the judiciary to test Beijing’s power after the legislative elections were postponed for a year and opposition politicians were effectively neutralized, said Jonathan Man, who acts as a lawyer for the Chau and is a partner at Hong Ho Tse Wai & Partners in Kong, which has handled hundreds of protests.
“People have put too much faith in justice because democracy has been so disappointing,” he said. “The central government does not feel comfortable leaving all this power in the hands of Hong Kong judges.”
– With the assistance of Josie Wong and Shawna Kwan
(Updates with Lai’s bail in the third paragraph)