Beijing gnaws at rule of law in Hong Kong

Author: Alvin Y H Cheung, NYU /  East Asia Forum

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 officials and committed Beijing apologiststo 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 of the advice of senior prosecutors. Read more…

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