One country, one system? Hong Kong’s judiciary faces test of independence

Ronson Chan was describing his appeal against a five-day jail sentence for obstructing police when he froze mid-sentence as he remembered that he was supposed to be at a police station for the twice-weekly visit that is a condition of his bail. Chan (41), a reporter for online news site Channel C and chairman of the Hong Kong Journalists Association, says he was handcuffed and detained when he asked a plain clothes police officer to show her warrant card after she asked for his ID.

“Most people, the legal reporters and the lawyers thought it should just be a fine. I won’t guess the magistrate’s intention but in today’s Hong Kong, I think if I face a court case I should prepare for the worst,” he said.

Two years ago, Chan was one of the stars of the independent online news outlet Stand News, drawing big audiences for his live streams from the scene of news stories around Hong Kong. But on December 29th, 2021 the police arrived at his door to search his apartment and take him in for questioning as part of an investigation into a conspiracy at Stand News to publish seditious content.

Chan was released later that day but acting chief editor Patrick Lam and former chief editor Chung Pui-kuen were charged under a sedition law dating from the British colonial era and Stand News closed immediately. Lam and Chung, who spent a year on remand before they were granted bail, will hear their verdict on November 15th.

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Chan says the result will have important implications for Hong Kong’s remaining independent journalists because although other news organisationd published some of the same material, Stand News was prosecuted because it was held to have done so with a seditious intent. The prosecution is also seeking to hold Stand News responsible for the content of reader comments below their reports on the social media that generate much of the revenue for the independent news outlets.

But if a guilty verdict would further chill the atmosphere in Hong Kong around press freedom, acquitting the Stand News defendants would send a powerful signal in the other direction.

“I think at least it would show that even in such a case related to a political issue, the prosecution may lose. That is an important message to international society and even to people from Hong Kong abroad that Hong Kong still has some autonomy,” Chan said.

The closure of Stand News followed the shutdown of pro-democracy Apple Daily a few months earlier and the arrest of its founder Jimmy Lai on charges of colluding with foreign forces and other charges. Lai (75) has spent more than 1000 days behind bars as he awaits trial under the National Security Law that Beijing imposed on Hong Kong in June 2020.

The National Security Law was introduced after months of pro-democracy protests in 2019 that saw violent confrontations between police and demonstrators that shut down parts of the centre of Hong Kong. It creates new criminal offences such as secession and foreign collusion, introduces a presumption against bail and weakens judicial oversight over police powers to investigate these offences.

A dedicated unit prosecutes the offences, specially appointed national security judges hear cases in non-jury courts and in some circumstances, Beijing may take jurisdiction and remove a case from Hong Kong altogether. The law has extra-territorial effect and earlier this year, the authorities issued bounties for the arrest of a number of pro-democracy activists who have left Hong Kong.

A total of 280 people have been arrested and 30 convicted under national security offences since the law was introduced but its impact on life in Hong Kong has been more far-reaching, snuffing out most of the free press, civil society and political activity. Many Hong Kongers fear that the idea of One Country, Two Systems, which Beijing promised would last for 50 years after Britain handed the colony back to China in 1997, is dead.

“It’s the end of One Country Two Systems the way we understood it in 1997, with the expectation that Hong Kong would move step by step towards full democracy, eventually a fully democratically elected legislative council,” said Jean-Pierre Cabestan, emeritus professor of political science at Hong Kong Baptist University.

“There is no more political autonomy as such. All the political decisions are made in Beijing or by the Liaison Office, which is Beijing’s voice in Hong Kong, and the elections both at the Legislative Council level or the district level are marginal in the appointment of political officials. Most of them are actually selected and co-opted by the Party and its United Front department here in Hong Kong. So I think there’s no more real political life in Hong Kong.”

Thirteen years before the handover, Britain and China signed a joint declaration guaranteeing that Hong Kong would retain its basic freedoms after 1997. Britain had never introduced democracy to Hong Kong but the city had a free press and an independent judiciary with a common law system.

“The current social and economic systems in Hong Kong will remain unchanged, and so will the lifestyle. Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law,” the declaration said.

After the handover, Hong Kong continued to enjoy a great deal of autonomy from mainland China with its distinct system set out in the Basic Law, a quasi-constitution. For Beijing, Hong Kong’s autonomy was not only acceptable but useful and in one important respect, necessary.

Hong Kong, which has its own currency, central bank and financial regulator, is the world’s third most important financial centre after New York and London. It is a separate customs area from mainland China and has its own representation at the World Trade Organisation.

Even before the handover, Hong Kong connected China to foreign capital and the global market and it continues to serve that function while allowing Beijing to keep its own financial system tightly controlled and semi-closed to the world. International recognition of Hong Kong’s autonomy from Beijing is crucial to maintaining its role as China’s offshore financial centre, which has grown in importance over the past two decades.

Cities like Shanghai and Shenzhen have seen their financial centres grow but global investors remain wary because mainland China does not enjoy Hong Kong’s rule of law and independent judiciary. Beijing is working hard to persuade international investors that the National Security Law is limited in scope and will not affect them or their business.

If life in Hong Kong feels more constrained than before, it is still more free than anywhere in mainland China, with open access to the internet and foreign books and newspapers freely available in shops. There are fewer foreign bankers and financial services workers than before the pandemic but the city still has an international feel.

Cabestan, who lectures on Chinese politics, said he has never felt any pressure in terms of academic freedom and unlike in mainland China, lecturers are not required to submit their power point slides to the authorities in advance. But he said some of his colleagues are careful about what they say in class and a secondary school teacher told me that if a discussion among his students veers towards anything political, he steers it away.

In his annual policy address on Wednesday, Hong Kong’s chief executive John Lee promised a fresh focus on “patriotic education” to bring Hong Kong’s schools more closely in line with mainland China’s.

Chan and his colleagues at Channel C continue to report on local news, including crime, court reports and issues surrounding housing and public services. He admits that they self-censor, avoiding direct criticism of the leadership in Hong Kong or Beijing but he said the environment for reporting had become a little more relaxed in the past year.

“There’s still some room for doing journalism here and it’s still different from the mainland. But never say never. You never know what will happen after you finish these news stories. And you have to be prepared that there may be some consequences. Maybe you will get arrested. So it’s still risky in some sense,” he said.

“I will try to persist my work. It’s not easy, I know. I don’t know how much room I will have to do it but I will try to do it until I can’t.”

Among the most high profile charges under the National Security Law are those against 47 pro-democracy figures accused of a conspiracy to commit subversion. The case centres on a plan to organise a primary ahead of legislative council elections with the aim of electing a majority of pro-democracy legislators despite a system rigged against them.

Most of the 47 have been behind bars for more than two years while their trial has been repeatedly delayed but closing arguments are scheduled for the end of November. Emily Lau, one of Hong Kong’s leading pro-democracy political figures for more than three decades, visits some of the 47 in prison and attends their trials.

“I go to attend the trials to show support, because when they come out into the dock, they immediately look at the public gallery, and if there are all the people waving at them, they feel good. Just imagine one day if they come out and the whole place was empty,” she said.

Lau was among the politicians who rejected a proposal in 2014 for a fully elected legislative council because all candidates would have to be approved by Beijing. She opposed a proposed extradition law that triggered the 2019 protests but she regrets the way the demonstrations developed.

“I never supported the violence. It was really bad. And I don’t know who were the perpetrators because everybody was masked up, but anyway, it was really bad. And then it brought us the National Security Law,” she said.

Lau and her colleagues in the Democratic Party never publicly condemned the violent protests, despite demands from the pro-Beijing establishment to do so. But younger pro-democracy activists condemn her for encouraging her party to run candidates in district council elections in December.

“They think we are nuts, they think we are trying to help to put cosmetics on this bloody system, which we’re not. And that’s why even if people do get nominated and get elected, they should go in and do the right thing, and not just to support the administration come what may,” she said.

The district councils have very limited powers over parochial issues but with a deadline for nominations at the end of October, no Democratic Party candidate has been able to secure the required nominations from three district committees. Other non-establishment candidates have also failed to win enough nominations and Hong Kong’s chief executive Lee suggested they might not have persuaded the committees that they were patriotic enough.

In his policy address, Lee promised to introduce Hong Kong’s own National Security Law next year, possibly toughening up Beijing’s version. And he warned of “soft resistance” from anti-government and anti-China movements “camouflaged in the name of human rights, freedom, democracy and livelihood”.

One Country, Two Systems was designed as a formula not just for Hong Kong but for Taiwan, which holds presidential elections next January. Four years ago, Beijing’s favoured candidate looked set to win Taiwan’s presidency but the polls flipped after the brutal police crackdown on the protests in Hong Kong.

Next month’s Stand News verdict and the trial of the 47 will be important tests for Hong Kong’s judges and their independence. Earlier this year, the high court rejected the government’s attempt to ban a song the demonstrators sang in 2019, ruling that the move could undermine freedom of expression.

“The game is not over. And if you compare us with mainland China, I think we’re still different. And of course, if we compare Hong Kong with what we were a few years ago then a lot of things have been reduced. I think we should do what we can to find an old Hong Kong, find a better Hong Kong. I think that is what we human beings should do. We’re not just economic or commercial animals just to make money and to have a good life,” Lau said.

“I think the leadership here is always looking to Beijing for orders, so let’s see what happens in the mainland. And if the leadership in Beijing sees that a peaceful and prosperous Hong Kong would be better for the development of the country, maybe they’ll do it. But if they see other priorities, then it’s very bad luck for Hong Kong and bad luck for the country.”