Last Thursday may qualify as one of the darkest days in Hong Kong’s history. The tragedy of young civic activists being dragged off to jail is bad enough. The political symbolism of Hong Kong’s three “faces of democracy,” being thrown in jail is even more telling. It is as if Hong Kong’s civil society is being jailed.
One can only wonder what the Department of Justice was thinking in pushing the courts to lock up so far 16 of Hong Kong’s dedicated young men and women, over moments of excessive zeal. Is Hong Kong on its way to joining other unsavoury regimes in filling its jails with political prisoners, as the international response suggests? Would prosecutorial restraint have been warranted?
The only logic offered by the government and accepted by the Court of Appeal is “deterrence”. There are deeper social and political issues at stake. Deterring the occasional excess in an otherwise non-violent movement also deters the exercise of valued free expression rights.
To understand the importance of such risk, it is important to know how the Hong Kong political system works. The “one country, two systems” model under the Sino-British Joint Declaration provided Hong Kong with an open rule-of-law-based society, but without the democratic constitutional tools to defend it.
This open autonomous region is lodged under a hardline regime with a strong political ethic of control as a fundamental principle of national security. This regime in its normal practice shows little inclination to exercise restraint.
The executive and legislative branches of the local “autonomous” government are effectively under the appointment and control of the central government, in a largely authoritarian system.
Local officials and appointees depend on Beijing’s approval and have little incentive or inclination to defend Hong Kong’s autonomy or core values.
Rather, the incentives favour a well-developed tendency to lecture Hong Kong on Beijing’s concerns.
The difficult task of defending Hong Kong’s autonomy, rule of law and basic freedoms has been largely left to civil society. Seeking a government that will perform its autonomous role, civil society activists have long promoted democracy as the key to sustaining Hong Kong’s autonomy and associated rule of law, and have kept the drumbeats of freedom alive on the streets by resisting government encroachment.
The local courts have backed this up as the legal guardians of civil liberties. In the common law tradition, this has included restraint in convicting or punishing civil society activists where fundamental rights are at stake. The courts have long distinguished themselves as the only independent branch of government. Will the government’s resorting to the courts to exclude and lock up its political opponents put that reputation at risk?
In protests over Article 23, the high-speed rail, national education, development projects and democracy, civil society activists have long represented core concerns of Hong Kong people.
In the face of countless lectures about how grateful people should be for Beijing’s kindness in giving Hong Kong its freedoms, Hong Kong people have stood their ground to defend those freedoms, as they did again over the past weekend.
Given the complicity of the Hong Kong government in assisting Beijing’s efforts at control, one can only wonder what sort of Hong Kong we would have today without this pushback from civil society. Alternatively, if Beijing had fulfilled its Basic Law promise of democratic reform, would Hong Kong have been more peaceful and less contentious?
Hong Kong civil society has faced a parade of difficult challenges. In Beijing’s 2014 white paper on “one country, two systems”, Hong Kong lawyers and activists were accused of a “confused and lopsided” view. We were told all guarantees in the Joint Declaration and the Basic Law come from Beijing and can be taken away by Beijing.
The local parade of challenges have included Beijing’s foot-dragging over promised political reforms, years of pressure on the media through economic rewards and intimidation, the emergence of corruption as Beijing-friendly businesses and elites are favoured, efforts at national education aimed at brainwashing youngsters in Hong Kong schools, and efforts to stack university councils to vet appointments and bring world-class universities to heel.
With the “umbrella movement”, Hong Kong’s civil society stood up against this degradation, to defend the solemn commitments to democracy and the rule of law. While non-violent civil disobedience involves breaking the law, as recognised by the trial judges in both of this past week’s cases, it has a long tradition as a noble last resort. The common law encourages judicial restraint in overseeing prosecutions where such precious rights are involved.
It seems our politicians have not learned the lesson that repression and unwarranted interference under the undemocratic Hong Kong system will invariably encounter civil society resistance. A government that repeatedly does this has only itself to blame for the increased resistance that follows.
Over the many years since the handover, civil society activism – involving hundreds of thousands of protesters – has, with rare exception, been non-violent.
Now three young civic activist leaders have been given six to eight months in prison for essentially, as found by the magistrate at the trial, climbing a fence to claim the “Civic Square”.
In lockstep with Beijing, the Hong Kong government has now taken to using the courts to eliminate its political opposition.
Through the oath-taking saga, with the assistance of a timely Beijing interpretation, it first took control of the legislature. Now it has gone back to the courts to lock up its civic opponents.
It is in this volatile context, in the shadow of Hong Kong’s rich civil society tradition, that locking up the youthful “faces of democracy” in Hong Kong looks pretty much like an attempt to lock up Hong Kong’s civil society.
Professor Michael C. Davis specialises in constitutional law and human rights