Hong Kong's courts are the last check on Beijing's growing power

Hong Kong pro-democracy media tycoon Jimmy Lai being led into a police van in Hong Kong as he heads to court on Dec 12. PHOTO: AFP

HONG KONG (BLOOMBERG) - For decades, Jimmy Lai has embodied the spirit of defiance in Hong Kong. He fled Communist China at the age of 12 to work in a garment factory, launched a pro-democracy media empire after the 1989 Tiananmen Square crackdown and became one of the world's best known critics of Beijing.

The city got a different glimpse of Lai on a recent Saturday in December: Shackled at the wrists, with a metal chain around his waist, the 73-year-old shuffled slowly into court flanked by two correctional officers.

Prosecutors charged Lai under a sweeping national security law imposed by Beijing in June, saying he colluded with foreigners by calling for sanctions against China. The judge - among those designated by Hong Kong's leader to hear security law cases - denied him bail while granting the prosecution more time to examine media interviews and about 1,000 tweets for more evidence. That ensures Lai will stay locked up until proceedings resume in April.

The trial of Lai, who denies wrongdoing, will test just how drastically Hong Kong has changed over the past six months. After decades of enjoying freedoms that don't exist in mainland China, residents of the financial hub now face prosecution for voicing political views deemed threatening to the Communist Party - a breach of promises China made when Britain handed over the former colony in 1997.

The courts are on the frontlines of this clash between two very different legal systems: One aimed at keeping the Communist Party in power, and another stemming from English Common Law tradition that aspires to treat everyone equally before the law.

Chinese police, prosecutors and courts answer to a secretive Communist Party committee, and authorities can hold suspects in national security cases for long periods without trial.

According to data compiled by Bloomberg, only one of 40 people arrested so far by the Hong Kong police's new national security unit was accused of violence. Roughly three-quarters were detained for political statements, such as suggesting foreign governments impose sanctions on Hong Kong or repeating slogans deemed pro-independence in Facebook comments, protest songs or on banners displayed in public. Others were hauled in for financial crimes, including crowd-funding for demonstrators.

As the first security law trials get underway next year, Hong Kong's independent judiciary is emerging as the last check on Beijing's power. Already this year China has boosted control of the executive branch and disqualified some pro-democracy lawmakers - prompting the rest of the opposition to resign en masse last month.

Now officials in Beijing are seeking to tighten their grip over the judiciary.

Mr Zhang Xiaoming, deputy director of China's Cabinet-level Hong Kong and Macau Affairs Office, last month signalled China would make more unilateral changes to the Basic Law - the territory's mini-constitution - while proposing unspecified judicial reforms. In the remarks to legal professionals, he said "the word 'patriotic' should be added before the core values of democracy, freedom and human rights upheld by Hong Kong society."

"The Communist Party views the judiciary system differently than western democracies," said Assistant Professor Dongshu Liu from the City University of Hong Kong.

"From their perspective, the judiciary should be a part of the governing forces that work in tandem to achieve a political policy. In terms of Hong Kong, they understand that the system is different, but they worry that the independent judiciary is undermining their control."

So far, Hong Kong's judges have continued to demonstrate their independence. While magistrates and judges have convicted about half of the 826 people who have completed judicial proceedings, that's just a fraction of the more than 10,000 people arrested by police during pro-democracy demonstrations last year before the security law took effect. Police eventually dropped charges against more than 2,300 protesters, and 5,000-plus others are out on bail or had the matter resolved through a police warning.

The new security law, however, risks undoing the city's hard-earned legal reputation with provisions similar to those in mainland China used to lock up people for vaguely defined political crimes. That could have important repercussions for international businesses: World Economic Forum surveys show that Hong Kong's judicial independence helps underpin its position as one of the world's most competitive economies.

"There is no question that Hong Kong's institutional framework has been damaged," said Mr Max Zenglein, chief economist at the Mercator Institute for China Studies in Berlin. "Hong Kong has lost much of its international allure. It is no longer Asia's 'world city,' but rather China's most global city."

'Extremely small minority'

Forced on the city without debate in the local legislature, the full text of the national security law was revealed for the first time at midnight on June 30 - the same moment it took effect. Framed as a necessary antidote to restore stability, the legislation claims global jurisdiction to bar secession, terrorism, subversion and collusion with foreign forces.

Hong Kong Chief Executive Carrie Lam said in June the law would only punish "an extremely small minority" while dismissing foreign criticism. Yet in a clear break from the past, Beijing is now also weighing in on Hong Kong court decisions, praising satisfactory rulings and using friendly media outlets to criticise others.

In November, Ta Kung Pao, which is owned by China's government through its Hong Kong Liaison Office, criticised Judge Anderson Chow after he ruled against the police. "Thugs rule, no human rights for policemen," said the headline. The story ran alongside a cartoon of a protester waving a weapon in front of a police officer and saying "The judge backs me!"

Even more worrying may be the way in which Beijing has recently altogether circumvented the Basic Law governing Hong Kong-China relations. Last month, China's top legislative body passed a resolution allowing for the disqualification of any Hong Kong lawmakers who aren't deemed sufficiently loyal, which the local administration instantly enforced.

"This could have very real implications for judicial independence," said Mr Thomas Kellogg, executive director of the Georgetown Centre for Asian Law. "In deciding cases judges may now wonder, 'If Beijing doesn't like a particular outcome, will it use its constitutional authority to overturn it?'"

In a response to questions from Bloomberg, the Department of Justice said it condemned the attacks on judges and was ready to prosecute contempt of court where necessary. It also said prosecutors aren't swayed by "political or other irrelevant considerations" and rebuffed general criticism on the low conviction rate among protesters arrested last year, saying it was "too early" to conclude that the majority of cases have been thrown out.

The department "does not tolerate nor condone acts which purport to influence or interfere with the independent exercise of judicial duties," it said. The agency also said judges named by the chief executive to rule on national security cases "remain independent and impartial," dismissing criticism of the practice as "absolutely absurd."

One Australian judge who sits on the Hong Kong bench resigned after the security law was enacted, while the UK is investigating whether to pull British judges from the Hong Kong Court of Final Appeal.

Veteran lawyers say their younger colleagues may also join a growing number of Hong Kong residents leaving the territory, including former lawmakers and young protesters seeking asylum abroad.

Even so, some democracy activists like Ms Jocelyn Chau still have faith in the courts, despite sharing criticisms over how some protester cases have been handled. In August 2019, the 24-year-old community activist was tackled by two police officers and arrested for live-streaming a peaceful neighbourhood gathering. She was charged with assaulting the officers, rather than the other way around.

In his verdict dismissing the charges, Magistrate Stanley Ho lambasted the two officers for being "cavalier" and "irritated" when questioned about their "unreasonable, illogical" testimony, which he said was contradicted by video of the incident. "The two police officers seem to be describing a situation from another time and space," he wrote.

She's now pursuing assault charges against the very officers who arrested her. "In Hong Kong, we can still fight for justice," she said.

Still, pro-China groups assailed Mr Ho for his judgment, with red graffiti springing up in Hong Kong calling him a "dog." Some demonstrated outside the High Court with a banner criticising him.

Tensions are only set to get worse as Hong Kong people look more to the judiciary to check Beijing's power after legislative elections were delayed by a year and opposition politicians were effectively neutered, said Mr Jonathan Man, who's acting as Ms Chau's lawyer and is a partner at Hong Kong's Ho Tse Wai & Partners, which has handled hundreds of protest cases.

"People have put too much faith in the judiciary because democracy has been so disappointing," he said. "The central government is not comfortable leaving all this power in the hands of Hong Kong judges."

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