Alvin Y.H. Cheung. ChinaFile. Who's to Blame for Hong Kong's Weakening Rule of Law?

January 23, 2018

imsky Yuen, Hong Kong’s third Secretary for Justice, stepped down in early January. He leaves his department, and the city’s reputation for rule of law, markedly worse than they were when he took office in July 2012.

According to the Department of Justice’s website, the Secretary for Justice’s role is to act as “guardian of the public interest in a wider sense.” Yet Yuen’s tenure has been marked by attempts to wield the law against political opponents, a refusal to defend the courts from unfair and racially-charged criticism or Beijing’s attempts to strip them of their power, and a steady attack on the foundations of Hong Kong’s constitutional order. Far from fulfilling his constitutional duty to speak up for the rule of law in Hong Kong, he has been a willing collaborator in Beijing’s sustained campaign to undermine it.

Consider the August 2017 re-sentencing of Umbrella Movement leaders Joshua Wong, Alex Chow, and Nathan Law for unlawful assembly. The three were originally sentenced in 2016 for occupying part of Hong Kong government headquarters, and had served their sentences. Nonetheless, Yuen, a political appointee, insisted on pursuing applications for re-sentencing contrary to advice given by senior career prosecutors.

That case represents the tip of an iceberg of partisan conduct by Yuen’s Department of Justice. The online media outlet Stand News found that the Department consistently declined to pursue applications for re-sentencing against pro-Beijing individuals convicted of violent acts during the Umbrella Movement. Meanwhile, it has consistently sought tougher sentences for activists protesting against government policies. In addition to this spate of prosecutions, Yuen’s Department also expelled six opposition politicians from the legislature. The proliferation of civil and criminal suits against pro-democracy figures points to a strategy of putting political opponents behind bars or in bankruptcy—both of which bar them from running for elected office.

In a May speech, Yuen identified the “core values” of Hong Kong’s legal system as including “the independence of the judiciary,” as well as “the integrity and quality of our legal system.” Yet he has been reluctant to rebuke Beijing’s apparatchiks when they make unwarranted attacks on, or seek to undermine the independence of, Hong Kong’s judiciary. His mealy-mouthed response to Beijing’s White Paper of 2014—which referred to judges as “administrators” who were subject to a “basic political requirement” to love the country—stands in stark contrast to the Hong Kong Bar Association’s rebuke. Nor did Yuen defend the judiciary after the conviction of seven police officers for beating up a protester during the Umbrella Movement led to a spate of racially-charged attacks on judges of non-Chinese descent. In April 2017, over a month after pro-Beijing individuals called for “Chinese” judges and Chinese-language judgments, Yuen merely emphasized “English is of course crucial in maintaining our common-law system,” without condemning the xenophobia behind the attacks. This track record of soft-pedalling Beijing’s campaign to undermine Hong Kong’s judges does not bode well for the independence of or public confidence in the judiciary.

If Yuen’s refusal to defend Hong Kong’s common law judges from Beijing’s depredations raises eyebrows, his attitudes towards the “One Country, Two Systems” doctrine of the Sino-British Joint Declaration, under which Hong Kong is supposed to be governed, is disturbing. In December 2014, in response to concerns over Beijing’s position that the Joint Declaration no longer had legal effect, then Constitutional and Mainland Affairs Secretary Raymond Tam declared, after consulting the Department of Justice, that the Joint Declaration had lapsed after the transfer of sovereignty in 1997. Tam added that the statements of Beijing’s “basic policies” in Article 3 and Annex I were unilateral, and were therefore never legally binding in the first place. Neither claim survives a cursory reading of the Joint Declaration. Article 3(12) states that the “basic policies” in Article 3 and Annex I “will remain unchanged for 50 years.” Article 8 declares that “[t]his Joint Declaration and its Annexes shall be equally binding.”

This contempt for Hong Kong’s constitutional order goes beyond the repudiation of its foundational instruments. In a particularly worrisome recent example, Yuen defended controversial arrangements for the establishment of mainland border control checkpoints as part of the extension of China’s national express rail network into Hong Kong. Under this system, part of the Hong Kong terminus would have mainland laws apply to it in full. (This stands in contrast to, for instance, the operation of U.S. “pre-clearance” checkpoints in Canada, where only the customs and immigration rules of the U.S. apply.) These plans prompted concern that there was no basis in Hong Kong’s Basic Law for the complete application of mainland law as proposed. Nonetheless, Yuen reportedly declared that Hong Kong’s legal system cannot be allowed to impede progress. Unsurprisingly, Beijing rubber-stamped the proposal—a move that was likely calculated to strip judicial review jurisdiction from Hong Kong’s courts. The Hong Kong Bar dubbed it “the most retrograde step to date in the implementation of the Basic Law.”

Perhaps the most disturbing part of Yuen’s tenure, however, has been his disdain for ideas that lie at the heart of rule of law. Consider, for example, the principle that one cannot be punished for doing something that is not prohibited by law. Yuen has insisted that the peaceful advocacy of independence for Hong Kong is illegal and contravenes the Basic Law. Yet he has consistently avoided addressing whether such advocacy amounts to criminal conduct. When pressed, Yuen’s response conspicuously avoided any reference to substantive law:

As to what we would do, we would follow the same procedure as in other cases, namely, when things happen, the law enforcement agency would decide whether or not to conduct investigation and if they have the results, they would pass on the investigation results to DoJ. We would look at it. My colleagues would consider the applicable law and the evidence and then will decide what to do. So at this stage, we would not be commenting whether we would be taking what actions.

Nonetheless, Yuen cannot wave away a fundamental hurdle to any prosecution: his failure to identify an underlying criminal offense.

In fairness to Yuen, the cloud under which he leaves office was not entirely his own making. He is not to blame for the 2015 abductions of the Causeway Bay booksellers—one of them a British national, Lee Bo—from Hong Kong soil. Nor has he emulated the worst excesses of the so-called “guardians” of the Basic Law: mainland academics and Chinese Communist Party functionaries who have insisted the Basic Law means whatever Beijing wants it to mean. Nonetheless, Yuen’s refusal to speak up for Hong Kong’s legal order in the face of pressure from Beijing sets a dangerous precedent in enabling further interference, and one that his successor will find difficult to reverse.