When 12 Hong Kong democracy activists fled the city by boat to escape what they feared would be targeted prosecutions for their role in last year’s protests, they ended up in a far worse situation: on trial in mainland China.
For months their families in Hong Kong have lobbied to bring the twelve back home to a judicial system that still commands a deep level of trust for its independence even as it’s become ever clearer that the other institutions of Hong Kong’s government—its executive and legislature—are now fully aligned with Beijing.
“I honestly never thought we would get to this stage,” said one member of the legal community in November, declining to be named due to the sensitivity of the topic. “One month ago, I said to a colleague I didn’t even imagine that after 2047 it would be like this.”
“This” being the waves of arrests of activists and lawmakers; of chief executive Carrie Lam declaring that there is no separation of powers in Hong Kong; of a newsroom raid and new police rules redefining who’s a journalist; of a teenager being charged with violating the national security law; of an activist charged with sedition for chanting anti-government slogans; of Beijing unilaterally engineering the expulsion of four democratically elected opposition lawmakers, followed days later by calls to “reform” and “perfect” the legal system.
Against this backdrop, the judiciary increasingly looks like Hong Kong’s last line of defense. “For us, the judges really are the last bastion of trying to keep the government in check,” said the legal professional.
In the battle that has begun over the future of Hong Kong’s courts, on one side is the Chinese Communist Party, where Chinese leader Xi Jinping’s conception of the rule of law prioritizes securing party rule over all else. On the other is Hong Kong’s common law system, shaped by British colonial rule, which prizes due process, transparency, and the independence of courts and judges.
“The weakness of the other branches…has left the judiciary standing alone.”
“The judiciary is very clearly under attack, and it’s a multi-front attack,” said Michael Davis, a global fellow at the Woodrow Wilson International Center in Washington. The need for judicial independence, he explained, has long been prominent “in part because of the weakness of the other branches [of government]… That has left the judiciary standing alone among the three branches of government as being able to resist what the government wants it to do.”
‘Making everything the national security law’
It was the fear of a breach of the firewall between Hong Kong’s independent judicial system and China’s opaque system that first sparked last year’s protests—over a proposed extradition bill that would have allowed suspects to be extradited to the mainland. Despite the public opposition, the firewall between the two systems is steadily being dismantled.
The new national security law that Beijing imposed in June allows mainland Chinese security agents to operate in Hong Kong beyond the jurisdiction of local laws while carrying out “official duties,” and put in place a committee to examine civil society for threats to national security, which is protected from judicial review. The law, which seeks to punish crimes such as “subversion” and “collusion with foreign forces,” gives the government the discretion to swap out judges and to order closed trials—of the sort that the 12 Hong Kongers on trial in mainland China are facing—and even for Beijing to take direct control in certain cases. In other words, a parallel, more opaque system is being set up to focus on the prosecution of acts of speech and expression.
According to the police, 40 people including media mogul Jimmy Lai and activist Agnes Chow have been arrested under the national security law as of Dec. 7; a Bloomberg analysis showed that the bulk of the offenses related to political speech, and only one person has been charged with violence. In Chow’s case, for example, her arrest for collusion with foreign forces may have been for helping to place an ad in Japanese newspapers calling for support for the protesters. While for Lai, the founder of independent newspaper Apple Daily, prosecutors have apparently been looking at social media activity and the fact the publication opened an English-language edition.
According to the local advocacy group Civil Rights Observer, there are at least seven people (pdf) who have been accused of offenses unrelated to the national security law, but whose cases were nevertheless investigated by the police’s national security department. In one instance, an activist who was charged with “uttering seditious words” under an older law had his case transferred to a designated national security judge even though he was not charged under the national security law.
“They’re trying to make everything the national security law,” said the legal professional.
Nevertheless, most protest-related cases are being handled under existing laws, and some have looked to these processes for reassurance. Of the roughly 10,000 people arrested since protests erupted in June last year, less than a quarter had been prosecuted as of the end of October, according to the Hong Kong police. Of those, 695 have been charged with rioting, leading to two convictions, six guilty pleas, and 18 acquittals, according to the latest tally by local outlet the Stand News (link in Chinese). Numerous cases have been thrown out for lack of evidence, including instances where judges have found police testimony to be unreliable, contradictory, or outright false.
To some legal experts, these outcomes suggest that the courts are functioning as they should. “The judicial branch really hasn’t changed much,” said Simon Young, a professor at the University of Hong Kong’s law faculty and a practicing barrister in the city. “Its role is to adjudicate cases, and that’s what it’s doing.”
Young also pointed to successful legal challenges against the government, such as one filed by the Hong Kong Journalists Association over police officers’ failure to display identification numbers, as evidence that the judiciary is continuing to fulfill its role of “flesh[ing] out the implications of the rights” that are protected under Hong Kong’s mini-constitution, the Basic Law.
But what has changed is everything around the judiciary. The executive has always been appointed by the Chinese central government, but Carrie Lam’s vocal support for Beijing’s crackdown in Hong Kong has shown the city just how short the leash is. The partially elected legislative lost its opposition this year and it’s unclear when elections, postponed during the pandemic will return, if ever. Now that those two branches are effectively controlled by Beijing, courts and judges are under unprecedented pressure.
In past months, Hong Kong’s courts have been vehemently criticized by both opposition and pro-China figures, with accusations that judges have either been too lenient or too tough on demonstrators, making every decision highly likely to be contested, which will shake faith in the judiciary even as it tries to do its job as usual.
One judge faced heavy criticism for describing a man who stabbed three citizens as a “victim” and blaming the attack on the protest movement. The judge was later removed from protest-related cases over his remarks. In another instance, a judge who acquitted a local pro-democracy politician of assaulting police—video evidence showed officers tackling her as she live-streamed a peaceful public gathering—and accused the officers of telling “lie after lie,” was pilloried by pro-China lawmakers and propaganda outlets, and was later removed from hearing cases. The criticism of judges grew so frequent and heated that Hong Kong’s chief justice Geoffrey Ma issued a rare 18-page statement (pdf) in September warning against attacks on the judiciary.
In a statement responding to questions from , a department of justice spokesperson said that “it is fundamentally wrong to suggest that the Judiciary in Hong Kong is being pulled closer in line with Mainland’s legal system.”
A twin last line of defense
University of Birmingham legal scholar Fiona de Londras, who has co-edited a book on China’s national security agenda in relation to Hong Kong, has argued that the individuals who make up Hong Kong’s judiciary will have to walk a fine line between upholding legitimacy and becoming a tool of legitimation. They include the roughly 200 judges and magistrates who decide cases, bureaucrats at the department of justice, and prosecutors and defense lawyers.
“How robust and independent are those individuals?” asked the Hong Kong-based legal professional. “There’s always that human element. But of course what the [Chinese Communist Party] is good at is getting to that human element.”
He described the judge Anderson Chow—whose rulings have earned him blistering attacks from Chinese state media—as “fearless,” but questioned whether more junior judges in lower courts will be as immune to pressure from Beijing.
There is also the future of the 14 foreign judges who sit on Hong Kong’s highest court, and whose presence, beyond bringing expertise, has long been seen as a stamp of approval in the credibility of the city’s judiciary. Since the national security law took force, an Australian judge has resigned citing concerns over the law, while the UK is now considering whether to remove British judges from Hong Kong. Foreign judges who continue to sit in Hong Kong courts “are an embarrassment to the legal systems of the jurisdictions of their home country,” said Alvin Cheung, a postdoctoral fellow at McGill University whose research looks at how authoritarian regimes damage legal institutions.
Young lawyers early in their careers may also be reluctant to take on politically charged cases because those cases are “like a ship that you can’t jump off of once you’re on it,” said one barrister, a type of lawyer in common law jurisdictions who can argue most cases in court.
Amid this charged atmosphere, Hong Kong’s leader has done little to inspire much confidence in the city’s legal system. This month, addressing a business summit, Lam pronounced that “taken as a totality it’s basically still the rule of law” in Hong Kong. The US state department’s travel advisory for Hong Kong, however, now explicitly warns people of the “arbitrary enforcement of local laws.”
For Davis, the two pillars that remain capable of resisting the authoritarian capture of Hong Kong are the judiciary and civil society. “The judiciary, as the guardian of the rule of law and basic freedoms, is in some ways in a protective role for civil society, for people’s rights and actions,” he said. “So it’s a sort of teamwork…a twin kind of last line of defense.”