Even as the Hong Kong government is increasing penalties for political speech and civic activism, including under the National Security Law enacted last June, the authorities are encountering some constraints on their ability to run roughshod over Hong Kong’s long-respected legal system.
Hong Kong’s judiciary is a remnant of the territory’s British colonial rule, replete with the tradition of robes and wigs, but also due process, common law precedents, and independent solicitors, barristers, and judges. Perhaps it is no surprise then that pushback against politically motivated prosecutions is emerging from lawyers, judges, the international community, and the principles of the territory’s common law system itself. Events over the past month highlight these competing trends, which present an unprecedented test for the rule of law in Hong Kong.
An Expanding Crackdown
The month of January opened with a round of mass arrests across Hong Kong. On January 6, Hong Kong police detained more than 50 activists and politicians under the city’s National Security Law. Officials claimed those detained had committed “subversion” by holding a primary last July to select candidates who would represent the pro-democracy camp in Legislative Council elections, which were subsequently postponed until September 2021. Police seized more than 200 digital devices from the detainees and reportedly sent them to mainland authorities for data extraction. In addition to the arrests, police visited the offices of at least three news outlets, serving warrants demanding documents related to the July primary.
Within days, authorities ordered local internet service providers to block access to an activist website, using a tactic deployed pervasively on the mainland, but rarely in Hong Kong. The blocked site, HKChronicles, is a platform that has been used by activists to dox police officers (among them, those involved in attacking protesters) and expose pro-Beijing businesses. While Hong Kong Broadband Network stated it stopped users from accessing the site on January 13, HKChronicles editor Naomi Chan claims users had difficulties accessing the site as early as January 6.
Then, on January 14, police arrested 11 people for providing help to activists who sought to escape Hong Kong by boat to Taiwan last summer. Those arrested included Daniel Wong Kwok-tung, a lawyer and district councilor who had provided legal assistance to the 12 activists after their detention by mainland police. On December 30, a Shenzhen court sentenced 10 of the “Hong Kong 12” to between seven months and three years in prison for illegally crossing the border. Chinese authorities have also threatened to revoke the licenses of lawyers hired to represent them.
Legal Hurdles and International Pushback
These examples demonstrate how the Hong Kong government’s crackdown on political opposition is affecting a growing number of residents and forms of speech. But it is also running into perhaps unexpected legal obstacles. While the National Security Law grants authorities broad powers to criminalize political dissent, legal experts suggest that the political sensitivity of these cases, and Hong Kong’s own common law system, means authorities still need to build strong cases. Thus, police have not yet issued formal charges against any of the 50-plus activists arrested on January 6. All but one have been released on bail — though their passports were confiscated to prevent foreign travel, and information on their devices will likely be used to dig up evidence of their alleged crimes.
On January 18, three student activists detained last July for “inciting secession” became the first people arrested under the National Security Law to be released unconditionally by police, although officers told one of the students that they could gather more evidence and rearrest her. Two days later, British-born barrister David Perry stepped down from leading the prosecution of nine pro-democracy advocates related to a peaceful 2019 protest, after lawyers and policymakers in the U.K. raised ethical questions about his participation in the case.
Vocal efforts to protect judicial independence in Hong Kong also emerged over the past month from the highest echelons of the territory’s legal system. On January 11, Andrew Cheung Kui-nung was sworn in as Hong Kong’s new chief justice. In his inaugural speech, Cheung criticized political pressure and attacks on the judiciary, remarking that it “must be and must remain an independent and impartial judiciary.”
Foreign governments are also responding to intensifying state repression in Hong Kong. On January 10, a joint statement by the American, Australian, British, and Canadian foreign ministers expressed “serious concern” about the January 6 arrest of dozens of democratic activists. On Twitter, then Secretary of State nominee Antony Blinken called the arrests “an assault on those bravely advocating for universal rights.” In response to the arrests, Blinken’s predecessor, Mike Pompeo, announced sanctions against six officials, including the vice chairman of Beijing’s Central Leading Group on Hong Kong and Macau Affairs and the deputy director of Hong Kong’s national security office.
The crackdown on activists in Hong Kong is certain to continue throughout 2021 and could include deepening media and internet censorship, as well as questionable electoral reforms. Still, if prosecutors and judges — even those dealing with National Security Law cases — feel compelled by public and international pressure to retain not only a rule-of-law veneer but some substance of due process, then Beijing and Hong Kong officials will be left with two unattractive options. Either they allow space for such protections, resulting in potential acquittals or unconditional releases of individuals deemed to be high-profile political enemies of the Chinese Communist Party. Or they follow mainland China’s playbook, engaging in large-scale arbitrary detention and censorship — including of legal professionals themselves — further harming Hong Kong’s reputation as a rules-based global financial hub.
Ongoing international attention and pressure — not only from governments, but also from the business community — is going to be critical in tilting the scales as far as possible in the direction of retaining the rule of law and thereby allowing some hope for a freer Hong Kong to survive. For, as Professor Jerome Cohen asks in a recent article, the million dollar question remains, “How long can Hong Kong courts resist the pressure to act more like those on the mainland?”