Jimmy Lai escorted by police on December 12th.
Photographer: Paul Yeung / Bloomberg
Photographer: Paul Yeung / Bloomberg
For decades, Jimmy Lai has embodied the spirit of defiance in Hong Kong. He fled communist China at age 12 to work in a garment factory, started 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 a different view of Lai last Saturday in December: chained to his wrists, with a metal chain around his waist, the 73-year-old man slowly entered the courtroom flanked by two correctional officers.
Prosecutors accused Lai under an extensive national security law imposed by Beijing in June, saying he collaborated with foreigners by calling for sanctions against China. The judge, among those appointed by the Hong Kong leader to hear the security law cases, denied bail while giving prosecutors more time to examine media interviews and about 1,000 tweets for further evidence. The Hong Kong High Court finally granted bail to Lai on December 23, on the condition that she stay at her home and avoid interviews or posts on social media.
The trial against Lai, who denies the offenses, will prove Hong Kong’s drastic change in the last six months. After decades of enjoying freedoms that do not exist in mainland China, residents of the financial center are now facing processes to express political views considered threatening to the Communist Party, a breach of promises made by China when Britain delivered the former colony in 1997.
The courts are at the forefront of this clash between two very different legal systems: one aimed at keeping the Communist Party in power and another that comes from the English Common Law tradition that aspires to treat everyone equally before the law. . Chinese police, prosecutors and courts are responding to a secret Communist Party committee and authorities can detain suspects in national security cases for long periods without trial.
According to data collected by Bloomberg, only one of the 40 people arrested so far by the new national security unit of the Hong Kong police was charged with violence. About three-quarters were detained for political statements, such as suggesting foreign governments impose sanctions on Hong Kong or repeating slogans considered pro-independence in Facebook comments, protest songs or on published banners. Others were caught for financial crimes, including mass funding for protesters.
When the first security trials begin next year, Hong Kong’s independent judiciary appears as the last control of Beijing’s power. This year, China has already pushed for control of the executive branch and disqualified some pro-democracy lawmakers, prompting the rest of the opposition to resign en masse last month.
Creepy speech
Only one of the 40 people arrested by the Hong Kong police national security unit was arrested for an alleged violent crime
Source: Bloomberg analysis of Hong Kong police data as of December 7th
Now, Beijing officials are trying to strengthen the judiciary. Zhang Xiaoming, deputy director of the Hong Kong-Macao Affairs Office at China’s cabinet level, said last month that China would make more unilateral changes to the Basic Law (the mini-constitution of the territory), proposing reforms. unspecified judicial proceedings. In statements to law professionals, he said the “patriotic word” should be added before the fundamental values of democracy, freedom and human rights defended by Hong Kong society. “
“The Communist Party sees the judicial system differently than Western democracies,” said Dongshu Liu, an assistant professor of Chinese politics at City University in Hong Kong. “From his perspective, the judiciary should be part of the government forces working together to achieve a political policy. In Hong Kong terms, they understand that the system is different, but they are concerned that the independent judiciary is undermining its control. “
So far, Hong Kong judges have continued to demonstrate their independence. Although magistrates and judges have convicted about half of the 826 people who have 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. Police in riot gear stormed a rally on Friday, removing hundreds of protesters by truck. Police in riot gear stormed a rally on Friday, removing 5,000 protesters by truck.
Mass arrests
Less than a quarter of the 10,171 arrests related to the protest by Hong Kong police go to court
Source: Hong Kong police data from June 9, 2019 to November. 30 of 2020; Bloomberg calculation
The new security law, however, runs the risk of undermining the city’s 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 surveys show that Hong Kong’s judicial independence is helping to strengthen its position as one of the most competitive economies in the world.
“There is no doubt that Hong Kong’s institutional framework has been damaged,” said Max Zenglein, chief economist at the Mercator Institute for China Studies in Berlin. “Hong Kong has lost much of its international appeal. It is no longer the “world city” of Asia, but the most global city in China. “
“Extremely small minority”
Forced into the city without debate in the local legislature, the full text of the national security law was first revealed at midnight on June 30, the same time it came into force. Framed as a necessary antidote to restoring stability, the legislation claims global jurisdiction to ban secession, terrorism, subversion and collusion with foreign forces.
Carrie Lam, executive chairman of Hong Kong he said in June that the law would only punish “an extremely small minority” while rejecting foreign criticism. Yet, in a clear break with the past, Beijing is also weighing Hong Kong’s court decisions, praising satisfactory rulings and using friendly media to criticize others.
In November, Ta Kung Pao, owned by the Chinese government through its Hong Kong liaison office, criticized Judge Anderson Chow after he ruled against police. “The thugs rule, there are no human rights for the cops,” the headline said. The story ran next to a cartoon of a protester waving a gun in front of a police officer and saying, “The judge supports me!”
Even more troubling may be the way Beijing has recently circumvented the basic law governing Hong Kong-China relations. Last month, China’s top legislature passed a resolution allowing the disqualification of any Hong Kong legislator who was not considered faithful enough, which the local administration enforced instantly.
“This could have very real implications for judicial independence,” said Thomas Kellogg, executive director of the Georgetown Center for Asian Law. “When deciding cases, judges can now ask, ‘If Beijing doesn’t like a particular outcome, will it use its constitutional authority to overturn it?'”
In response to Bloomberg’s questions, the Justice Department said it condemned the attacks on judges and was willing to prosecute judicial contempt when necessary. He also said prosecutors are not influenced by “political or other irrelevant considerations” and rejected general criticism of the low rate of convictions among protesters arrested last year, saying it was “too early” to conclude. that most cases have been expelled.
The department “does not tolerate or tolerate acts that seek to influence or interfere with the independent exercise of judicial functions,” he said. The agency also said judges appointed by the chief executive to rule on national security cases “remain independent and impartial,” and dismissed criticism in practice as “absolutely absurd.”
An Australian judge on the Hong Kong bench resigned after the security law was enacted, while the UK is investigating whether to remove British judges from the Hong Kong Final Court of Appeal. Veteran lawyers say their younger colleagues may also join a growing number of Hong Kong residents leaving the territory, including former lawmakers and young protesters seeking asylum abroad.
London Calling
In October, nearly 60,000 BNO passports for Hong Kong residents were approved
Source: UK government
Still, some democracy activists like Jocelyn Chau continue to have confidence in the courts, despite sharing criticism about how some protest cases have been handled. In August 2019, two police activists attacked the 24-year-old community activist and arrested him for broadcasting a peaceful neighborhood rally live. She was accused of assaulting officers instead of doing it the other way around.
In his verdict dismissing the charges, Magistrate Stanley Ho insulted the two officers for being “gentlemen” and “irritated” when questioned about his “unreasonable and illogical” testimony, which he said contradicted him. with the video of the incident. “The two policemen seem to describe a situation of another time and space,” he wrote.
She is now pursuing charges of assault against the same officers who arrested her. “In Hong Kong, we can still fight for justice,” he said.
“Dog”
However, pro-Chinese groups attacked Ho at his trial, with a red graffiti that emerged in Hong Kong and called him a “dog.” Some demonstrated outside the High Court with a banner criticizing him.
Tensions will only get worse as the people of Hong Kong focus more on justice to test Beijing’s power after the legislative elections are delayed by a year and opposition politicians are effectively castrated, said Jonathan Man, who is Chau’s lawyer and is a partner at Hong Ho Tse Wai & Partners of Kong, which has handled hundreds of protest cases.
“People have relied too much on the judiciary because democracy has been very 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)