There is More to Justice than its Shattered Visage

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Statement from current students and alumni of the Law Faculties of the Universities of Hong Kong in reply to the Hong Kong Bar Association’s statement dated Dec 9th, 2019.

We are students and graduates of the law faculties of a number of universities who have come together to mourn the loss of Hong Kong’s rule of law.

It has fallen, not at the hands of protestors, not by petrol bombs – but by the tyranny of our Government. It has always been known, that under the Basic Law, the power of final interpretation was a captive of the Central Government, and that has always been the case because Hong Kong has always been powerless in the strife between nations. But our Government has never attempted to defend what little independence it had within the framework. Far from that, it has invited the Central Government’s interference into our system at every turn: in 1999, on the pretext of completely duplicitous immigration estimates, it invited the Central Government to interpret the Basic Law, overthrowing the Court of Final Appeal’s judgment regarding whether children of Hong Kong citizens may enjoy the right of abode in Hong Kong. The precedent being set, a deluge of Executive interference was soon to follow. It became custom for the Executive and the Central Government to interfere, and for the courts of Hong Kong to oblige.

From abandoning plans for true universal suffrage of the Legislative Council and the Chief Executive to disqualifying Legislative Council members under the transparent pretext of interpreting oath requirements under the Basic Law, the Standing Committee of the National People’s Congress has wielded its power of interpretation as its chosen legal weapon to bludgeon political opposition into non-existence. Stripped of its substance, the independence of Hong Kong’s Judiciary became a mythical creature, existing in name only.

What of prosecutorial independence? Under Article 63 of the Basic Law, prosecution affairs are said to be ‘free from interference’. But what the Department of Justice has chosen to do, with its complete control over prosecutions, is to pursue harsh punishment of a harmless old woman collecting cardboard on the streets; all the while indulging the bottomless greed of our senior officials. On the one hand, it has shirked from the prosecution of officials who had profiteered from their positions in cases involving great public interest: Antony Leung was never prosecuted in court for his purchase of a saloon days before he increased taxes on car registration; CY Leung was never prosecuted for his receipt of HK$50 million from UGL. In both cases, the Department of Justice cited an insufficiency of evidence, but we will never know what that insufficiency was because the public is not entitled to know how that evidence was gathered and because the process of investigation is too opaque for anyone to say that it is independent. When our incumbent Secretary of Justice, Theresa Cheng, has failed to declare that she continued to work on arbitration work from her private practice notwithstanding her public duties, an act which may amount to misconduct in public office, who do we go to in order to seek justice and how do we hold people like her to account? On the other hand, our Department of Justice has been only too eager to use every weapon in its arsenal to crush all who dare raise their voice against the Government. In the name of deterrence, it is determined to terrorize the opposition by making examples of activists. Ostensibly asking for a review of sentence, the then Secretary of Justice, Rimsky Yuen, sought to punish the three activists, Joshua Wong, Nathan Law, Alex Chow, for no other reason than the political views they held after they had served their original sentences. His successor, Teresa Cheng, was condemned in an open letter issued by prosecutors in July in which they revealed how, exhibiting a cavalier contempt for the Prosecution Code and the public interest, she had pressed onwards with prosecutions of protestors and others arrested at public events on the sole basis of political considerations.

We have not even begun to address the right of every citizen to have access to justice. In a place which purports to make the rule of law one of its core values, how many of the weak and powerless have been stopped outside the gates of our courthouses? Every day, there are workers from the grassroots, who, being injured at work, cannot even make it to being granted legal aid, not understanding the legal procedure of claiming against their employers. Without being equipped with any of the necessary knowledge or resources to fend for themselves in court, they are left to contend with the unfamiliar and complicated niceties of court procedure. Very often, they are castigated for wasting the court’s time, even as the enforcers of the law, abusing their power of arrest and abusing their power to prosecute, are allowed to come to court without the proper papers. Asylum seekers, even when they manage to reach the right legal avenues amidst discrimination by the law, discrimination from society, and discrimination on the basis of language are met with institutions that do not understand their background and are uninterested in their plight. Ignoring their mental distress and dubious fitness to give evidence, these institutions press asylum seekers for information while favoring the very countries they are fleeing from. These cases are becoming so ubiquitous that we as students of the law are forced to ask: where does a fair trial begin?

Whether in simple civil matters or in judicial reviews that challenge the system of government itself, citizens must endure an endless wait for justice that is always late. Apart from the above, the trial of Edward Leung for rioting has shown that Hong Kong courts are unwilling to recognize political motive as a mitigating factor – a disappointing and anachronistic interpretation of the law divorced from Hong Kong people’s moral and political ideals. And it is in this context that we ask: what – if anything – has the Hong Kong Government done to facilitate access to justice for Hong Kong people?

The Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 was premised upon a willful ignorance of the long-standing differences between Hong Kong and the Mainland’s judicial systems. By its refusal to listen to contrary opinion, our Government managed to incite public anger of such a magnitude that it became a movement unto itself. Yet the voice of the people not only went unheard and unheeded, it was met with repression. The fact is that, putting aside the Government’s designs in reviving the colonial era rioting charge which by itself carries as much as 10 years in prison, the disproportionate and indeed, irrational use of force by the police force for the last few months has not only not been corrected by the courts, it has come to receive a degree of judicial acquiescence. In one case, a magistrate took the view that a laser pointer found in the backpack of a fifteen-year-old boy constituted an offensive weapon, and further concluded, from the fact that the boy carried knee pads, that he intended to use this ‘offensive weapon’ against police officers or others. Whatever has become of that high standard of proof – beyond reasonable doubt – that was once required of every conviction? When police officers refused to show their warrant cards while purporting to carry out their duties, the courts were willing to grant an interlocutory injunction prohibiting members of the public from inspecting the registers of electors/votes or publicizing photos or personal information of police officers without lawful excuse. Is it far-fetched to suspect that the Judiciary was applying double standards in what was supposed to be a fair adjudication process? As such, were the arsonists’ acts, as the Bar Association as quick to condemn, merely wanton attacks upon a symbol of justice? Or should they not rather be seen as a wake-up call as to the dismal state into which our justice system has fallen?Judicial bodies must, of course, abide by established legal principles, but what is worrying is the demonstrable willingness of some judges to air their political views in the judicial arena. In the trial of a 13-year-old girl for desecrating the Chinese flag, the magistrate in charge launched into a diatribe against her for burning the flag by which she sought to ‘educate’ her to learn to ‘respect her own nation and country’. When three teenagers were arrested after a screening about the anti-ELAB movement in Sham Shui Po on 29 August, the Magistrate issued a protection order for them to be remanded at the Tuen Mun Children and Juvenile Home, despite there being no prosecution against them, because he took the view that in failing to flee the chaos that ensued after the film ended, the three had shown that neither they themselves nor their parents were capable of taking good care of them. These unwarranted and indeed unsolicited remarks sow suspicion in the mind of the public: it is the suspicion that when dealing with public events that are the subject of controversy, supposedly independent judges would not indeed be impartial.

It is true that in the Hong Kong of today courts have perilously little room for maneuver: the power of prosecution lies with the Department of Justice – if prosecutors only target activists and not law enforcers, there is nothing the courts can do. More recently, on the Government’s enactment of an anti-mask law under the Emergency Regulations Ordinance, not only was the mask ban itself entirely disproportionate and a serious abrogation of the right to freedom of expression, there was also ample legal basis for the High Court to declare the Emergency Regulations Ordinance unconstitutional, which it did. But that act was to be followed by a brazen campaign on the part of state media to frame Hong Kong courts as the usurpers of Executive authority. And indeed, earlier on, Zhang Xiaoming as the Director of the Liaison Office had made the shocking claim that Hong Kong’s Chief Executive should be above judicial oversight. When we say, ‘The independent Judiciary is dead’, this is not to besmirch the reputation of our courts, but is the last desperate cry of Hong Kong people that have seen its rule of law drawn and quartered in front of their eyes.

Each and every one of these developments should be cause for outrage. Yet, against this backdrop, we have time and again read statements from the Bar Association that can only be described as surreal: ‘(The Judiciary is) the very institution which administers justice, protects the rule of law as its key guardian, and upholds fundamental rights and freedoms’. We beseech you, as barristers of Hong Kong, to consider and consider again these words. Are they, after what has happened to Hong Kong, plausible? Are they persuasive? Are they true? If the Bar Association finds it hard to think of anything more corrosive to the rule of law than the vandalism of courthouses, it is clearly not thinking hard enough. Violence against courtrooms has happened because, for those it has failed, the courtroom no longer symbolizes justice. If the Bar Association refuses to see the brokenness in our system and the awareness of our laws, unless it finds the heart to condemn the cause of protest violence which is the violence emanating from our system, it will be remembered as no more than an accomplice of the oppressor. As past and present law students, we are keenly aware that the curriculum from which we learned was and is driven by market demand, heavy on commercial services, and light on the pursuit of justice. It is also, regrettably, slow to judge where our system has gone wrong. But it is these limitations that in these times of turmoil spur us to take a more proactive role in society, amidst the masses, to realize and to reflect upon the meaning of the rule of law. We are grateful to the Bar Association for its role in voicing out against the NPCSC’s interference into Hong Kong independent judiciary in a former declaration. However, could the Association not have done more, said more in the 9 December declaration? Was the physical destruction of our courthouses, and already corroded symbol so much to be condemned? If not justified or excused, should not such protesting acts at least be understood, with empathy?

The rapist is you/ It’s the cops/ The judges/ The state/ The president. May the lyrics of this song of the Chileans against sexual violence serve as a reminder not only to the Bar Association but also as a general warning to all of us.

— A group of past and present law students of Hong Kong Mourning the Late Rule of Law in Hong Kong

Editor: GM35

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