Officials and legal authorities both here and in Beijing have taken great exception to the international condemnation of a high court ruling on August 17 that sent three young activists to prison. The three are Joshua Wong- Chi-fung, Nathan Law Kwun-chung, and Alex Chow Yong-kang. They were given six-to-eight-month jail terms for leading an unlawful attempt to break into a closed off public space known as Civic Square adjacent to Hong Kong’s Legislative Council building. The space had been temporarily closed off as a security precaution amid rising political tensions at the time.

The students’ action on the night of September 26, 2014, at the end of a week-long city-wide classroom boycott, provoked the public reaction and police tear-gas response that led to Hong Kong’s 79-day street blockades between September 28 and mid-December 2014.

The three were among several student leaders who stood in the forefront during those 79 days that became known as Hong Kong’s Umbrella-Occupy Revolution … or Occupy for short. Naturally, they had to bear responsibility for their part in the “unlawful assembly.” They were tried last year and all received light community service or suspended jail sentences from a sympathetic judge who cited their youthful idealism minus any criminal intent.   But then the tide within Hong Kong’s justice system took a hard turn in the opposite direction.

The Hong Kong government’s Department of Justice decided the punishments were too lenient for individuals who had willfully precipitated so disruptive an episode … even if it was for the high-minded cause of universal suffrage and electoral reform. Hong Kong’s Secretary for Justice Rimsky Yuen reportedly overrode the advice of his department’s prosecutors and appealed the case asking that the initial judgements be overturned in favor of custodial sentences of some duration for all three.

The prosecution was successful, the appeal judges acquiesced, and the judgments were duly handed down on August 17.*  The six-to-eight-month sentences have put a long hold on the electoral aspirations of Nathan Law and Joshua Wong since both looked set for promising political careers. According to Hong Kong law, anyone who receives a custodial sentence of three months or more must wait five years to qualify as a Legislative Council candidate.

FIRST RESPONDERS

The chorus of condemnation began to rise as word circulated about what the verdict was surely going to be. The New York Times could have done with better help from its fact-checkers but was nevertheless too close to the local public mood for comfort. Even the South China Morning Post could not resist a tongue-in-cheek cartoon dig at the official protestations of politically innocent intentions.

It was an awkward moment for Hong Kong’s government and its new Chief Executive Carrie Lam … caught as they were between Beijing’s relentless condemnation of all people, places, and things associated with Occupy, and the need to uphold the appearance of judicial independence.

That principle is commonly regarded and officially proclaimed as Hong Kong’s most basic and prized core value. Without it, by general agreement, the viability of the cross-border “two systems” experiment … designed by Beijing for Hong Kong … cannot be sustained.

The Times in its August 15 editorial had referred to the defendants as Hong Kong’s “first political prisoners” … their crime: “defending Hong Kong’s autonomy from Beijing’s increasing encroachment.”   In England, Hong Kong’s last British governor, Christopher Patten, said the three young men would go down in history as Hong Kong heroes.

A hastily-organized local rally brought out over 20,000 people, by conservative police estimate, on a sweltering hot Sunday afternoon to let the prisoners know they were not alone. The Occupy movement’s partisans were standing behind their own and the movement seemed to be shedding some of its differences. Radical “separatist” champions of independence marched together with many others … a mix of old, young, and everything in-between but it was not a happy crowd.  Marchers contributed HK$2.5 million to the defense fund.

Beijing naturally railed against “foreign force” interference and warned all outsiders to mind their own business. In Hong Kong, the entire political and legal establishments rallied to the government’s side, as did loyalist pro-Beijing partisans who hailed the verdict as long overdue.

A BARRISTER’S CONUNDRUM

 Of all the responses, those coming from Hong Kong’s legal community were probably the most important. But not for strengthening the government’s case. On the contrary, they weakened it. This they did by revealing just how tenuous the “two-systems” promises for Hong Kong’s autonomy have become under the impact of Beijing’s increasingly obvious interventions.

In a rare show of unity, difficult to achieve on most issues, the Law Society and the Bar Association issued a joint statement in support of the verdict.**   The Law Society’s solicitors seem to prefer safely conservative politically-correct positions whereas barristers (courtroom lawyers under the British system) can be less cautious. But not this time.

Their joint statement railed against the media, both local and international, for commenting critically on the Justice Department’s application for reviews of the light sentences that had been handed down for unlawful assembly offenders. In another similar case, just reviewed by the same three-judge appeals panel responsible for re-sentencing the three student activists, 13 environmental protesters had also had their original sentences overturned. All 13 were immediately sent to jail.

According to the joint bar/law statement: “ … one must be careful and cautious when commenting on a court judgment and has to take into account the impact of such comment on the integrity and independence of the Judiciary. The bedrock to the rule of law in Hong Kong is the trust and confidence of the public and the international community towards our judges and the judicial system. Any inappropriate comment could fuel baseless and unnecessary suspicion on judicial independence, and may undermine the confidence of the public and the international community in the rule of law in Hong Kong … “

So the public should not comment on a court judgment for fear of undermining trust and confidence in the judiciary’s independence? That reads like an advisory written for use in some other place that is not threatened by constant pressures from a sovereign known to respect neither freedom of political expression nor judicial autonomy. Hong Kong’s sovereign is also constantly promoting the logic of progression toward one-country, one-system integration, to include interactive cooperation between the executive and judiciary … as statements from Beijing have noted on several occasions.

The lawyers’ joint advisory also seems to have forgotten another of their liberal principles, namely, that credibility and legitimacy are as much about public perceptions as the institutions and procedures themselves. So that when large numbers of people do not see a decision as being fair and just, especially a decision that contradicts common sense understanding based on matters of public knowledge, then maybe something is not right with the judgement and public skepticism should be encouraged rather than shut down.

The Secretary for Justice Rimsky Yuen Kwok-keung applied the same contradictory logic in an August 24 South China Morning Post commentary. He reminded readers that the authority of the law rests on public confidence and is important for social stability. Such confidence should not be shaken by baseless attacks on the integrity of the courts. Fair enough. But public confidence must be earned. It cannot be decreed.

In this particular case, the circumstances are so well known that onlookers can hardly conclude otherwise than that the resentencing verdicts are politically motivated under pressure from Beijing.  Indeed, it would require a gigantic leap of faith to conclude otherwise.

The issues involved are endemic to Hong Kong’s democracy movement but have developed more specifically during the past year after Hong Kong’s new post-Occupy candidates were elected to the Legislative Council. They improvised their oaths at the swearing-in ceremony last October, Beijing intervened on November 7 with an interpretation of Hong Kong’s Basic Law Article 104 on oath-taking, and six newly-elected legislators have been disqualified as a direct result.

The disqualifications have also been accompanied by a steady drumbeat from the pro-Beijing media demanding punishment for those who would disrespect the central government and celebrating each ruling that goes against them.

At a Beijing-sponsored seminar held to publicize the November 7, 2016 interpretation of Basic Law Article 104, retired official Chen Zuo’er blasted Hong Kong’s judges for the wrist-tapping sentences they were handing down to democracy activists (SCMP, Wen Wei Po, Apple Daily, all Nov. 10, 2016).

Not long before Chen’s tirade, the three student leaders just re-sentenced had been convicted of unlawful assembly. But the judge had let them off with light sentences citing their youthful idealism in mitigation (SCMP, Ming Pao, Aug. 16, 2016). The noticeably tougher sentences began earlier this year … all delivered with stern homilies from the bench (April 19, 2017 post).

Yet the authorities, all reading from the same script, are now challenging the public to trust them while they insist that the judgements have been handed down strictly by the book, in accordance with local laws and procedures.

Barrister Ronny Tong Ka-wah demonstrated the problem perfectly during a TVB Straight Talk interview on August 22. He has traveled a still unexplained journey from the democratic camp to his present position as a member of Chief Executive Carrie Lam’s Executive Council or cabinet. As such, he is required to abide by its norms of confidentiality and consensus but in this case the official view and his own are as one.

He called it a sad day for Hong Kong when anyone should presume to question the independence of Hong Kong’s judiciary. As a former chairman of the Bar Association, he recalled how difficult it had always been to bring solicitors and barristers together on any issue. Yet they had now agreed on the joint statement, only to see it coolly received by a skeptical public. He seemed genuinely perplexed. What had gone wrong? The ruling against the three activists had been reached strictly in accord with legal procedures as are all Hong Kong court verdicts.

Judicial independence, he said, is Hong Kong’s only remaining core value, a precious inheritance that must be respected if it is to survive.  He repeated the saying that justice is blind and reminded viewers that the British statue of Lady Justice, blindfolded while weighing the scales of justice, still stands above the main entrance to  the old court building in downtown Hong Kong. Yet people everywhere have been saying the independence of Hong Kong’s judges is being corrupted by Beijing.

Ronny Tong is articulate and erudite and also well-travelled. So he must know that in the United States, for example, little children are also taught that justice is blind. But then when they reach the age of political reason and, hopefully, begin exercising their right to vote, they learn about the differences between liberals and conservatives and between the Democratic and Republican Parties.

Everyone learns that the rule of law comes with diverse interpretations as between members of the two main parties. For some voters those distinctions are among the most important reasons for choosing one candidate or another, that is, whether a President is likely to appoint judges known for their liberal or conservative readings of the law.  Same laws, same judicial procedures all meticulously followed, different judgements.

So Ronny Tong should be able to appreciate that Hong Kong’s laws come with sentencing guidelines to be strictly or liberally interpreted at a judge’s discretion. Thus Ronny Tong should also be able to appreciate why the public perceives that, given the circumstances, political pressues might well have come  to bear on the appellate decisions that relied on tougher guidelines to send Wong, Law, and Chow to jail for six-to-eight months.

The circumsatnces are: regular communication between Hong Kong and mainland officials; Beijing’s insistence on politically reliable appointees for all leading government positions;  Rimsky Yuen’s own prior political inclinations: all that has happened since the oath-taking saga began last October; and the official diatribe against molly-coddling Hong Kong judges in November.

The rule of law is sacrosanct. For Ronny Tong there is no higher end.  But the real danger for judicial independence he seems not to recognize. The danger is to continue insisting that Hong Kong’s judiciary is free of mainland influence when circumstantial evidence suggests that it is not.

In the United States, adversarial partisan politics is institutionalized within the court system itself.  In Hong Kong, the mainland’s one-party dictatorship is abrading directly on the courts without any intervening buffer or source of mediation.  The judicial system is being left to improvise and adapt as best it can.  But to try to cover the clumsy re-sentencing maneuver with a business-as-usual gloss does little for confidence and credibility.

The overriding problem for Hong Kong is how to maintain the integrity of its common law principles as mainland intrusions grow, autonomy erodes, and pressures for two-systems integration continue to mount.

Defining the rule of law in terms of  strictt adherence to judicial procedure is also a mainland habit, which makes it all the more unsettling to see Hong Kong’s legal establishment resorting to the same defense. 

* Chinese only, Judgement Case no.: CAAR 4/2016: http://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=110877&QS=%28CAAR%7C4%2F2016%29&TP=JU

SCMP, trans., excerpts:

http://www.scmp.com/print/news/hong-kong/politics/article/2107474/read-hong-kong-court-appeals-ruling-joshua-wong-nathan-la

** HK bar, law society joint statement, August 18, 2017:

http://hkba.org/sites/default/files/20170818%20-%20Joint%20Statement%20of%20HKBA%20and%20LSHK%20in%20Response%20to%20Criticisms%20of%20Judicial%20Independence%20in%20HK%20%28E%29.pdf

 Posted by Suzanne Pepper on August 24, 2017

hkfocus2017@gmail.com

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