Hong Kong Law: No Longer an Umbrella for Justice

Hong Kong increasingly looks like a place where the government adheres to the law, but where the law is twisted to suppress dissent. While some judges apply the law fairly, others appear to exhibit their pro-government views, bend to pressures on them from those who appointed them to deliver very harsh punishment for minor infringements, or charges involving the twisting of language. “Exemplary” punishments out of line with the severity of an offence are used to silence or frighten critics.

The territory’s judicial system will be under particular scrutiny in a trial that has just begun of persons supposedly the masterminds behind the mass demonstration four years ago known as the Umbrella movement, which brought traffic in parts of Hong Kong’s central business district to a half for several weeks in 2014. Hundreds of thousands of people from all sectors of the population participated in these protests against new limits imposed by Beijing and the local authorities on progress towards fully representative government.

It took the government more than two years to dream up charges against those it chose to identify as ringleaders and nearly two more to bring the cases to trial. At the time the protests were noted for their peaceful and orderly nature, with the only noted violence being an assault by police on some demonstrators and massive police tear gas barrages on the first day of the protests, an event which widened support for the movement.

The convoluted language of the charges shows up just how feeble they are, focused on creating “nuisance,” a very minor offence in normal English law. Thus three of the accused, two academics and a clergyman, are charged with “conspiracy to cause a public nuisance” and “inciting people to incite others” to cause public nuisance. Six others, including two sitting legislators and one former one, are similarly charged with incitement to create public nuisance.

“Incitement” can be a tricky concept but a degree of desperation is indicated by charging people with “incitement to incite.”

These charges now contrast with government at the time which never had the guts to charge any of the hundreds and thousands of protesters, who included leading lawyers, union leaders and a wide range of professional people. If there was a “public nuisance” it was created by these hundreds of thousands, not by six people.

Normally a first offender in a “public nuisance” case would only be subject to a fine. But the charges against these six are clearly aimed at persuading judges to hand down sentences which are out of all proportion to the offence. This has already happened in other cases involving pro-democracy activists given multi-year sentences for offences which would normally carry at most short prison terms.

Otherwise, compliant judges have been used to remove elected pro-democracy legislators on dubious legal grounds.

Beijing, keen to stamp on any local movement that might challenge its authority, is clearly supporting these abuses of the legal process. However, power also seems to have gone to the head of Hong Kong Chief Executive Carrie Lam, a lifelong bureaucrat who prospered under the colonial regime is eager to show her masters how tough she is and how willing to dispense with traditions of separation of judicial and executive authority.

This almost inevitably going to backfire. The legal system doesn’t operate in a vacuum. While the law can be used to arbitrarily decide how much punishment to deliver to protesters, at some point someone is going to bring a case involving business interests that forces in Beijing will want adjudicated for reasons that have nothing to do with justice.

When that happens, the foundation of Hong Kong’s prosperity – the rule of law and the sanctity of contract that kept multinationals in the city – is going to evaporate. And with it, Hong Kong’s reason for existence as a global business hub.