Hong Kong’s freedoms, autonomy and rule of law face ever-increasing threats, but there is a twin set of legal dangers that pose the most serious risks for the city’s way of life: an old colonial law that needs reform, and a new law that should never be introduced.
Last week, two Hong Kong activists, Ray Wong and Alan Li, announced that Germany had granted them political asylum – the first ever asylum seekers from Hong Kong. For a city that has for decades been a destination for refugees fleeing mainland China, Vietnam, Pakistan and other parts of the world to be producing its own asylum seekers is a sign of just how bad the situation has become.
These two young Hong Kongers fled their city to escape prosecution.The pair had been charged with rioting offences under the Public Order Ordinance for their involvement in civil unrest in 2016. The punitive way in which the Public Order Ordinance has been used to prosecute more than 100 democracy activists since the Umbrella Movement five years ago has resulted in an atmosphere of fear in what was once one of Asia’s most open cities.
At the same time, last week the European Union issued a demarche – the most formal diplomatic protest – to the Hong Kong government over its proposals to introduce measures to allow extradition from Hong Kong to mainland China of anyone China accuses of criminal acts. A group of eight United States Congressmen and Senators wrote to Hong Kong’s Chief Executive, urging her to withdraw the proposal. US Secretary of State Mike Pompeo, the American Chamber of Commerce in Hong Kong, the International Chamber of Commerce, the Hong Kong Bar Association, and the British government have all expressed alarm. And on Wednesday last week 15 Parliamentarians from six countries wrote an open letter to Chief Executive Carrie Lam, protesting the new laws.
If the new measures go through, it will remove the ‘firewall’ that was deliberately established between Hong Kong and the mainland, designed to protect ‘one country, two systems’, and mean that anyone who incurs the wrath of the Chinese Communist Party will be unprotected. It is a move that, unusually, has united both businesses and human rights activists in opposition. Extraditing a suspected criminal from a territory that still has judicial independence and the rule of law to mainland China where courts are under the regime’s direct control with no possibility of a fair trial is profoundly dangerous. The last Governor Chris Patten is right to describe this move as the 'worst thing' to happen to Hong Kong since the handover in 1997.
The combination of the new extradition measures and the continued use of the Public Order Ordinance will have an increasingly chilling effect on the city’s dissidents. To protest in Hong Kong used to be a basic freedom, guaranteed under the mini-constitution known as the Basic Law and the principles set out in the Sino-British Joint Declaration providing for Hong Kong’s autonomy under ‘one country, two systems’. Now such a basic exercise of freedom is likely to land a protester in jail, or potentially to be extradited to the mainland. It is all part of the government’s increasing campaign of what has been termed 'lawfare' against democracy.
All this should be seen with the backdrop of the thirtieth anniversary of the Tiananmen massacre. After the People’s Liberation Army turned their guns and tanks on thousands of demonstrators in Beijing and around the country on 4 June, 1989, Hong Kongers were shaken. The British colonial government in Hong Kong introduced further measures to try to protect human rights in the territory, particularly the Hong Kong Bill of Rights Ordinance, which incorporated into Hong Kong law the provisions of the International Covenant on Civil and Political Rights (ICCPR). When he became governor in 1992, Chris Patten introduced reforms of the Public Order Ordinance, to bring it into line with the Bill of Rights and international law. He described the Public Order Ordinance as 'antiquated and potentially repressive', due to 'vague definitions' which are 'open to abuse'. However, Beijing immediately reversed the reforms after the handover, leading the United Nations Human Rights Committee to express concern that the law was inconsistent with Hong Kong’s obligations under the ICCPR.
It was not, however, until 2011 that the Hong Kong government started to use the Public Order Ordinance aggressively and frequently against dissenters. This year alone, 45 people have been charged under the law, in contrast to a combined total of 39 people prosecuted in the 13 years between 1997 and 2010.
Among the most high profile cases in which the Public Order Ordinance has been deployed by the government have been the Umbrella Movement student leaders Joshua Wong, Nathan Law and Alex Chow, who were initially convicted in 2016 for 'unlawful assembly' and given community service and, in Mr Chow’s case, a three-week suspended sentence. But the Hong Kong government was not satisfied, and called for a review of the sentencing. The trio were then jailed for between six and eight months, disqualifying them from running for the legislature for the next five years.
In 2018, Edward Leung – another prominent student pro-democracy activist – was jailed for six years on charges of ‘rioting’ under the Public Order Ordinance. This was more than a Hong Kong police officer received for raping a woman in a hotel room. Mr Leung, aged 27, had no prior criminal record, and although in the Mong Kok riots there were people who threw stones, he was not among them.
One in three pro-democracy legislators in Hong Kong has faced prosecution since the Umbrella Movement. Indeed, in one of the most absurd examples of the misuse of the Public Order Ordinance, two former legislators were jailed for 'illegal assembly' inside the Legislative Council. Imagine the reaction if an MP in the UK was jailed for staging a protest inside Parliament.
A key problem in all of this is that in Hong Kong’s system, the Secretary of Justice – a political appointee – is in charge of prosecutions. In Britain, for example, there is a separation of powers, and prosecutions are led by the Director of Public Prosecutions and the Crown Prosecution Service. The Justice Secretary shapes policy, but does not lead prosecutions. Urgent reform in Hong Kong is needed to similarly separate powers and take prosecutions out of the Secretary of Justice’s hands. That simple act would go some way towards depoliticising such cases.
Reform is also needed to better define crimes under the Public Order Ordinance, and to tighten sentencing guidelines, to ensure it is less open to abuse. An inquiry into the police response to the Umbrella Movement is also required, to address concerns that violence against peaceful protestors by the police and triad gangs was perpetrated with impunity.
Hong Kong’s reputation as an international financial centre with openness, transparency, basic freedoms and the rule of law has taken some very significant hits in the past five years, and – if the extradition law is implemented – confidence in Hong Kong will be even further diminished. In a recent report, Hong Kong’s Progressive Lawyers Group concludes that 'the pressure on implementing the principles of rule of law in Hong Kong has been mounting'. Both Britain and China have obligations to Hong Kong under the Joint Declaration which, at least until 2047, they must fulfil. Beijing should respect Hong Kong’s autonomy, Britain should speak out for Hong Kong’s basic freedoms, and the Hong Kong government must, in the interests of the city’s reputation, abandon the proposed extradition measures and reform the Public Order Ordinance. The international community must also speak out clearly for Hong Kong’s freedoms. Failure to do so will mean the death of Hong Kong.
Benedict Rogers is co-founder and Chair of Hong Kong Watch.