Outlook Grim for Hong Kong’s Democracy Advocates

Trial dates keep receding for ill-defined ‘crimes’

The 47 pro-democracy advocates who have been in detention in Hong Kong since February 28 have been jailed for no other reason than holding an election.

That, in the doublespeak that has seized the territory since Xi Jinping sent in his Oberherren from the Liaison and Hong Kong and Macau Affairs Offices to see to democracy’s demise, constitutes subversion, a charge made possible under the National Security Law imposed by Beijing in June 2020 and carrying heavy penalties. Subversion, secession, collusion with foreign forces are concepts that remain undefined in Hong Kong law.

Among the 47 – 39 men and eight women -- are former lawmakers and democracy advocates. They have been refused bail on the grounds that they would be likely to re-offend, presumably by attempting to hold another election. Although they were due back in court on May 31, the government has applied for a delay to July 12, at which time it is expected to ask for the case to be transferred to the High Court, which will mean another delay.

In this, the defendants’ situation very much resembles the plight of Josef K, the Franz Kafka protagonist of the dystopian novel The Trial, who finds himself arrested but who can never find out what he has been charged with and whose dates in court recede into an interminable future. The sheer number of defendants means the trial is likely to be protracted with neither the timing nor the outcome and sentencing predictable.

The one certainty is that they will all be found guilty. One country-risk firm in Hong Kong that prefers to remain anonymous is predicting prison terms up to seven years for the defendants. Former lawmaker Eddie Chu Hoi-dick recently announced he would disband his political team in the expectation of a lengthy prison sentence.

Under the National Security Law, special judges have been appointed to hear these cases. It is clear from their behavior so far that they were picked because they have pledged to accept that the judiciary is subservient to the executive, a core Communist Party tenet. The court proceedings have the form but not the substance of Common Law jurisdictions.

In another separate national security case against a demonstrator, the first under the law, a High Court judge rejected a bid for a jury trial, saying that anything in the Basic Law, the agreement supposedly agreed by Beijing and London to govern the territory for 50 years, was over-ridden by the security law. The judge in that decision was one of the specially appointed ones.

At the same time, regular, non-security law judges have been handing down prison sentences for prominent democrats who took part in peaceful 2019 demonstrations deemed unlawful assemblies. Thus what is supposedly guaranteed under the Basic Law -- the right of assembly -- is effectively neutered by the police, then used by judges in the pocket of the police/judiciary to hand out stiff criminal sentences for what anywhere else would at best be misdemeanors. Even Martin Lee, the 81-year-old barrister who was instrumental in promulgating the Basic Law agreement, got a substantial jail term though in his case it was suspended.

The specific charge against the 47 relates to the holding last July by pro-democracy hopefuls of a primary election to decide on who should be chosen to run in planned legislative council races. The idea was for diverse democrats to have a united front to maximize the number of seats they could win and perhaps, although unlikely given the structure of the territory’s skewed democracy, even get a majority in the legislature despite the fact that half of its seats go to business and professional groups mostly aligned with the government.

That proposed primary election alarmed the government because in 2019 the pro-democrats delivered a humiliating defeat in District Council elections. With 452 seats from all directly elected constituencies up for grabs, the democrats tripled their number of seats from 124 to 388 and captured 17 district councils of 18. Nearly three million Hong Kong residents voted, or 71 percent of the electorate, an unprecedented turnout, a de facto referendum on the government’s unpopularity and an indication that the silent majority blamed the government more than the demonstrators for mass protests and violent events that had rattled the city earlier that year.

The government viewed the primary as a conspiracy to subvert the government. Using the Covid-19 pandemic as an excuse – although the government has only recorded 11,800-odd cases in a population of 7.5 million, and 210 deaths – it postponed the September election.

Last November, following a critique of the pro-democracy movement in Hong Kong by the National People’s Congress in Beijing, the Hong Kong government summarily disbarred four elected legislators. Others had previously been removed via dubious judicial and administrative means. At that point, the remaining opposition lawmakers in the Legislative Council resigned.

In the early hours of January 6, the police acted, raiding and searching homes and arresting the 47, seizing computers, phones and confiscating passports. The activists were released but were told to report to the police on February 10, which they did. They were told to do so again on April 8 but were told to report to the police instead on February 28.

When they did so, they were remanded into custody. Six prominent democrats including former legislators as well as Next Media publisher Jimmy Lai again were also arrested and denied bail prior to sentencing for organizing an unauthorized October 2019 protest.

On orders from a magistrate who was clearly following orders from a justice department that has demonstrably become an arm of the police, they have remained in the kind of custody usually meted out to common criminals, denied access to their loved ones except for 15-minute visiting sessions through telephones from behind soundproof glass.

Subsequently, on March 30 the Standing Committee of the National People’s Congress in Beijing announced a law imposing “reform” of Hong Kong’s legislative system in a way that further marginalizes directly elected members. The number of indirectly elected members from new small “functional” constituencies, has been greatly increased to make sure any unpredictable turns toward democracy won’t happen.

The new patriotic legislature will be “elected” in September. Meanwhile, the existing legislature is already a rubber stamp for an executive which does what it is told by Beijing.

In the meantime, outside the prison walls, ominous developments continue to take place. The assets of Jimmy Lai and of his Next Media publishing empire have been confiscated and it is increasingly likely that Apple Daily, one of the most popular newspapers in the city, will be closed.

The Hong Kong government is closing its trade office in Taiwan, a decision was made by the Constitutional and Mainland Affairs Bureau.

In an apparent kowtow, the Catholic church has appointed a new bishop who has vowed to unify a politically divided community, a decision that calls up the church’s actions in China itself, where for decades the government in Beijing appointed its prelates. As usual, the church is putting its institutional interests above proclaimed principles.

Carrie Lam Cheng Yuet-ngor, the longtime civil servant who was appointed chief executive by Beijing, an allegedly devout Catholic, does whatever she is told by an aggressively atheist Chinese Communist Party. The new bishop, Stephen Chow Sau-yan, a Jesuit, steers away from condemning anti-church (and anti-Muslim) actions on the mainland, where actions against Uyghurs in Xinjiang have been condemned as genocide.

In March, the deputy head of the police National Security Department was arrested in an anti-triad raid on an unlicensed massage parlor. The news only came out last week. He has been cleared of illegal acts and was not doing anything immoral although six women at the establishment were arrested for alleged prostitution. The officer claimed he needed massage for a bad back, which says considerable about the police sense of immunity, although it seems likely that his arrest was a set-up.

School textbooks are being re-written and senior academics in social science relate subjects finding their contracts not being renewed. The exodus of educated young people has accelerated dramatically. The same is true with expats other than those in financial services who cannot bear living anywhere they might be taxed.

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