How independent of its government is the judicial system of Hong Kong? The question has been brought into stark relief by two decisions last week by its Court of Appeal handing out serious jail terms to young activists and student leaders who had earlier been sentenced to (and served) community service for those roles in demonstrations in 2014. The government had appealed and demanded exemplary, deterrent sentences.
The appellate judges complied. The difference between the original and Appeals sentences was on a scale which many viewed as incredible given that Appeals courts did not hear new evidence, merely unexamined claims by the counsel for the Director of Public Prosecutions.
Proving that the judiciary is not as independent as the government and most of the legal profession claim cannot be done simply on the basis of two high-profile cases. However, despite protestations to the contrary, what looks like a duck and swims like a duck usually is a duck.
The two separate rulings came from the same set of judges in the same week. In one case, 13 young activists were sentenced to up to eight to thirteen months in jail. They had been protesting against compulsory acquisition by the government of village land for development rather than nearby land owned by a golf club and private developers.
The second case involved three student leaders including Joshua Wong, who had been a driving force in the 2014 Umbrella movement and headed the activist Demoisto Party. He, Nathan Law and Alex Chow were all sentenced to eight months for their roles in attempting to occupy the so-called Civic Square, an area adjacent to the government office and legislative council building complex. This was supposed to be open to the public and had become a place for protests but had then been closed by the government on grounds of safety, The sentences were sufficient to achieve a secondary objective of the government – to disbar them from running for political office for five years.
Wong had been too young to stand in the 2016 Legislative Council election but Law had stood and easily won a seat for the Hong Kong Island constituency. However, he was subsequently disbarred on grounds of not taking the oath of office properly. Subsequently three others pro-democracy electors were similarly removed from the positions to which they had been elected.
All this suppression of pro-democracy activists and elected legislators was achieved through the courts, responding to cases brought by the government itself, and following a ruling by Beijing’s National People’s Congress which occurred after the alleged offences had been committed.
Although technical grounds for finding the parties guilty, the punishments were widely seen not only as excessive but pandering to a government desire to crush the activists and radical politicians. None of this is surprising despite the protestations of independence of the legal community. Although in theory the executive, legislative and judicial arms of government are supposed to be separate, the government boasts of being “executive led”. Meanwhile the Communist Party makes no secret of its opposition to such separation of powers. Hence judges interested in promotion within the judicial hierarchy will take note of the pressures for Hong Kong’s system to move closer to that of the One Country.
Recent cases remind many of the admiration of some high Hong Kong officials for aspects of Singapore – notably that the government and its leaders invariably win cases and also use libel and contempt suits to silence criticism. (The latest example is Lee Kuan Yew’s grandson Li Shengwu fleeing to the US in July for fear of arrest for suggesting that the courts were not independent. The Singapore Attorney General had applied for committal proceedings against Li for contempt of court).
For sure, there are differences of opinion with the ranks of Hong Kong judges generally. But those facing politically sensitive cases are well aware of unspoken pressures. Organizations representing the profession have decried foreign criticisms of the jailing, and earlier of the disbarment of legislators. But many individual lawyers dissent from a view which they see as typical of the self-protective instincts of the legal profession. It is also a profession that can make a virtue of putting legal technicalities above principles of justice.
The law is also very expensive. So do not be surprised if elected legislators who lost their appeals against disbarment are pursued by the government for huge costs which they will be unable to pay. If subsequently bankrupted they too will be disbarred from public office for several years. The government, the fat cat judges and lawyers will win again at the expense of Hong Kong’s reputation for liberalism and equality before the law.