Sat, Aug 26, 2017 page8

• Rule of law requires a democracy

  • By Ivan Ho 何明修
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  Later generations will remember last week as the darkest hour of Hong Kong’s pro-democracy movement.

  Two decades after sovereignty over Hong Kong was transferred from Britain to China and less than two months into Hong Kong Chief Executive Carrie Lam’s (林鄭月娥) tenure, her government has already succeeded in upgrading non-custodial sentences, handed out in two separate cases, to prison sentences through an appeal to Hong Kong’s Court of Appeal.

  Hong Kong’s once independent judiciary has been reduced to a tool that can be used by Beijing to crack down on dissidents.

  The two prosecutions concern two social movements that occurred in 2014. The first case relates to demonstrations against a development project in the region’s northeast New Territories in June of that year. The second concerns a sit-in at a public square that took place several months later in September — the precursor to the “Umbrella movement.”

  On Tuesday last week, 13 protesters who stormed the Hong Kong Legislative Council during demonstrations against the New Territories development proposal were one after the other sentenced to between eight and 13 months in jail.

  Then on Thursday, three young leaders of Hong Kong’s pro-democracy movement — Joshua Wong (黃之鋒), Alex Chow (周永康) and Nathan Law (羅冠聰) — were sentenced to six to eight months in prison for unlawful assembly.

  The government’s severe punishment of members of the public who hold dissenting views should have been entirely predictable given recent developments.

  The so-called “fishball revolution,” which erupted just over one year ago when police attempted to clear unlicensed food stalls in Hong Kong’s Mongkok District, ended with several protesters sentenced to three years in prison.

  Four legislators who modified their oaths of allegiance to China during a swearing-in ceremony in October last year were last month disqualified and barred from taking their seats in the Legislative Council.

  Taken together with two other pro-independence lawmakers who were also disqualified from the council last year — Sixtus “Baggio” Leung (梁頌恆) and Yau Wai-ching (游蕙禎) — nearly one-10th of the 70 lawmakers who make up the council have had their legislative careers terminated, without cause, by members of Hong Kong’s judiciary.

  Yet, there are still more legislators who, despite being democratically elected by their constituents, will have to defend their eligibility to stand for office. Moreover, the leaders of the “Umbrella movement” and the “fishball revolution” might face additional punitive actions.

  When Britain returned Hong Kong to China, many believed that the rule of law concept handed down by their former colonial rulers would help to maintain Hong Kong’s freedoms and liberties. Twenty years later, Hong Kong residents continue to abide by the law and respect the judiciary.

  If such an outrageous verdict had been handed down by a Taiwanese judge, there would have been a public outcry over “judicial persecution,” yet in Hong Kong the public has labeled it “a disgraceful act of political oppression,” because they hold the Hong Kong Department of Justice responsible for persevering with the appeals — not the judges.

  In daily life, Hong Kongers respect traffic rules far more than Taiwanese do. They do not view traffic lights as merely advisory; they always stop at red lights. Even during street protests, Hong Kong demonstrators do not transgress beyond cordons or blockades erected by the police.

  Every year on July 1, tens of thousands of pro-democracy protesters take to the streets on the anniversary of the 1997 handover of Hong Kong.

  They must wait for hours before the police allow them to enter a designated narrow street — and because the police know that the public will not transgress onto a lawn within a public space, they confidently use the grassy areas of the public square beside the government’s headquarters building as a way to prevent large crowds from forming in the area.

  The rule of law is the greatest invention in the history of humanity. Everyone is equal under the eyes of the law, which means that every member of society must play by the same rules and obey the laws of the land. These impartial rules can be used to restrain the powerful and prevent a government from trampling over the public’s rights and freedoms.

  The rule of law is so important because it promotes social justice and guarantees the rights of all.

  However, the concept of the rule of law can be easily reduced to a general principle that “everyone must abide by the law” without taking into account whether the result achieves justice or whether it violates human rights.

  In some countries, the rule of law actually means “rule by law,” where a ruler puts in place a series of laws and then demands that citizens unconditionally adhere to them.

  Unfortunately, Hong Kong’s legal system has slipped into such a system of “rule by law.” Instead of being used to uphold justice, the law in Hong Kong is being used as a tool to suppress dissent.

  Rather than using secret police to kidnap “troublemakers,” the autocratic regime of China, which needs to conceal the undemocratic nature of its governance, gets Hong Kong’s wig-wearing judges to do its dirty work — handing out custodial sentences to dissidents to give the punishments an air of respectability.

  In Taiwan, the Compensation Act for Wrongful Trials on Charges of Sedition and Espionage During the Martial Law Period (戒嚴時期不當叛亂暨匪諜審判案件補償條例) did formally conform to the key legal requirements for indictments and verdicts, but it was still not possible to avoid unjust charges.

  This is why these cases have become a target of transitional justice campaigners seeking to redress historical injustices.

  The corruption of the rule of law in Hong Kong shows that relying on the independence of the judiciary is insufficient in itself to guarantee that justice and human rights are properly upheld.

  Without an accompanying democratic system of government, laws will invariably become distorted over time, leading to injustices, while judges might pander to those in power when passing verdicts and sentencing.

  The Chinese Communist Party has already indicated on numerous occasions that members of the Hong Kong judiciary must show patriotic allegiance to China. This is why dozens of 20-year-olds in 21st-century Hong Kong can be prosecuted and found guilty of political crimes.

  We should not be surprised; we should have seen it coming.

  Ivan Ho is a professor of sociology at National Taiwan University.

  Translated by Edward Jones
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