Hong Kong’s courts are the ultimate control over Beijing’s growth power

Jimmy Lai escorted by the police on December 12.

Photographer: Paul Yeung / Bloomberg

For decades, Jimmy Lai personified the spirit of defiance in Hong Kong. He fled Communist China at the age of 12 to work in a clothing factory, launched a pro-democracy media empire following the Tiananmen Square crackdown in 1989 and became one of Beijing’s best-known critics in the world.

The city had a different glimpse of Lai on a recent Saturday in December: chained by his wrists, with a metal chain around his waist, the 73-year-old man slowly crawled into the court flanked by two correctional officers.

Promoters accused Lai under a comprehensive national security law imposed by Beijing in June, saying he conspired with foreigners in calling for sanctions against China. The judge – among those designated by the Hong Kong leader to hear security law cases – denied bail by giving the prosecution more time to examine media interviews and about 1,000 tweets for more evidence. The Hong Kong Supreme Court finally granted bail to Lai on December 23, on the condition that he stay at his home and avoid giving interviews or posting on social media.

Lai’s trial, which denies any wrongdoing, will test how drastically Hong Kong has changed in the past six months. After decades of enjoying freedoms that do not exist in mainland China, residents of the financial center now face lawsuits for expressing political views that threaten the Communist Party – a violation of promises made by China when Britain handed over the former colony in 1997 .

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 comes from the tradition of customary English law, which aspires to treat everyone equally before the law. Chinese police, prosecutors and courts respond to a secret Communist Party committee, and authorities can keep suspects in national security cases for long periods without trial.

According to data compiled by Bloomberg, only one of 40 people arrested so far by the new national security unit of the Hong Kong police has been accused of violence. Approximately three-quarters were held for political statements, such as suggesting that foreign governments impose sanctions on Hong Kong or repeating slogans deemed pro-independence in Facebook comments, protest songs or publicly displayed banners. Others were arrested for financial crimes, including crowdfunding for protesters.

While the first trials of the security law are underway next year, Hong Kong’s independent judiciary is emerging as the ultimate control over Beijing’s power. This year, China increased control of the executive branch and disqualified some pro-democracy legislators – prompting the rest of the opposition to step down en masse last month.

Chilling speech

Only one of 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 on 7 December

Now officials in Beijing are trying to increase their control over the judiciary. Zhang Xiaoming, deputy director of the Hong Kong and Macau Affairs Bureau of China, signaled last month that China would make more unilateral changes to the Basic Law – the mini-constitution of the territory – by proposing unspecified judicial reforms. In comments to legal professionals, he said that “the word ‘patriot’ should be added to the fundamental values ​​of democracy, freedom and human rights defended by Hong Kong society”.

“The Communist Party sees the judicial system differently from Western democracies,” said Dongshu Liu, assistant professor of Chinese politics at Hong Kong City University. “From their point of view, the judiciary must be part of the government forces that work together to achieve political policy. In Hong Kong terms, they understand that the system is different, but fear that the independent judiciary is undermining their control. “

So far, Hong Kong’s judges have continued to demonstrate their independence. Although magistrates and judges sentenced about half of the 826 people who completed judicial procedures, this is only a fraction of the more than 10,000 people arrested by the police during pro-democracy demonstrations last year, before the security law came into force . The police eventually dropped the charges of more than 2,300 protesters, and another 5,000 others are either on bail or had the matter resolved through a police warning.

Mass arrests

Less than a quarter of the 10,171 protests related to protests by Hong Kong police go to the judicial system

Source: Hong Kong police data from 9 June 2019 to November. 30, 2020; Bloomberg calculation

The new security law, however, risks destroying the city’s legal reputation, with provisions similar to those of mainland China used to arrest people for vaguely defined political crimes. This could have important repercussions for international business: World Economic Forum research shows that Hong Kong’s judicial independence helps to sustain its position as one of the most competitive economies in the world.

“There is no doubt that Hong Kong’s institutional structure has been damaged,” said Max Zenglein, chief economist at the Mercator Institute for Chinese Studies in Berlin. “Hong Kong has lost much of its international fascination. It is no longer the ‘world city’ of Asia, but the most global city in China. “

‘Extremely Small Minority’

Boosted in the city without debate in the local legislature, the full text of the national security law was first released at midnight on June 30 – the same time it came into force. Framed as a necessary antidote to restore stability, the legislation claims global jurisdiction to prevent secession, terrorism, subversion and collusion with foreign forces.

Hong Kong Chief Executive Carrie Lam said in June that the law would only punish “an extremely small minority”, although it rejected foreign criticism. However, in a clear break with the past, Beijing is now weighing in on Hong Kong’s court decisions, praising satisfactory decisions and using friendly media to criticize others.

In November, Ta Kung Pao, which belongs to the government of China through its Hong Kong Liaison Office, criticized Judge Anderson Chow after he ruled against the police. “The bandits rule, with no human rights for the police,” read the headline. The story ran alongside a cartoon of a protester brandishing a gun in front of a police officer and saying “The judge supports me!”

Even more worrying may be the way in which Beijing recently completely circumvented the Basic Law governing Hong Kong-China relations. Last month, China’s main legislative body passed a resolution allowing the disqualification of any Hong Kong lawmakers who are not considered sufficiently loyal, which the local administration immediately enforced.

“This can have very real implications for judicial independence,” said Thomas Kellogg, executive director of the Georgetown Center for Asian Law. “In deciding cases, judges can now ask themselves, ‘If Beijing doesn’t like a particular outcome, will it use your constitutional authority to annul it? ‘”