Hong Kong: is the rule of law set to end?

Hong Kong: is the rule of law set to end?

‘The rule of law, if preserved, will ensure that Hong Kong continues to attract international business and investment and to hold its own entrepreneurial citizens here. This is a community largely made up of refugees from China – you don’t have to explain to those citizens the difference between having and not having the rule of law. The alternative to the rule of law can easily become Hobbesian, it can become the law of the jungle.’

That is what Chris Patten (now Lord Patten) told me as we sat in Government House, a few months before he stood down as the last Governor of Hong Kong.

Since then, Hongkongers have believed their government when it said that the Basic Law, agreed by the Chinese and UK governments as a precursor to the 1997 handover, held true. Although Hong Kong is now part of China, it has preserved a common law legal system, based on English law, under the label: one country, two systems. It has been a beacon of social stability and rule of law in the region, attracting multinational companies, financial institutions and law firms, while Chinese companies have listed on Hong Kong’s stock exchange.

But in June 2019, thirty years on from The Tiananmen Square protests and ensuing massacre, an estimated 1m people took to the streets of Hong Kong in protest against what they saw as erosion of the rule of law by China. They surrounded government offices and the Legislative Council (Leg Co) building, blocking roads and capturing international headlines in the process.

Labelled ‘organised riots’ by Hong Kong’s Chief Executive Carrie Lam, many of the predominantly young protestors were not even born in 1997. But they shared the sentiment and endorsed the substance of Patten’s argument. ‘Hong Kong’s young protesters back with a vengeance as all-out chaos erupts on city’s streets,’ proclaimed the South China Morning Post.

Like Tiananmen, the violence perpetrated against them by the Hong Kong police was sanctioned by China’s guiding hand: tear gas, rubber bullets, bean-bag rounds, batons, and pepper spray were liberally used to quell their anger and disperse the crowds, leaving nearly 100 people injured. Amnesty International Hong Kong director Man-Kei Tam said the ‘ugly scenes against overwhelmingly peaceful protesters was a violation of international law.’

A few days earlier, 3,000 Hong Kong lawyers had marched in silence from the Chinese-ruled city’s highest Court of Final Appeal to the Government offices. Symbolically, they were all dressed in black. Their objective was the same as the protestors who were beaten and gassed into submission: trying to stop a proposed extradition bill that would see Hong Kong citizens being sent to China to face trial, creating fear that China would use the law to target political enemies. Lord Patten called the bill ‘a terrible blow’ to the rule of law.

Hong Kong residents know that Chinese courts are controlled by the Communist Party. They are anxious that Beijing will use the new extradition powers to target political dissidents and others who meet with Chinese disapproval. They also see it as an obvious sign of China’s encroachment on freedom and the rule of law, exposing Hong Kong citizens and its large foreign resident population to Chinese rendition – and potentially the death penalty.

At Prime Minster’s Questions, Theresa May said: ‘It is vital that extradition arrangements in Hong Kong are in line with the rights and freedoms that were set down in the Sino-British joint declaration.’

A statement followed from the British Foreign Secretary, Jeremy Hunt: ‘I urge the Hong Kong government to listen to the concerns of its people and its friends in the international community and to pause and reflect on these controversial measures. It is essential that the authorities engage in meaningful dialogue and take steps to preserve Hong Kong’s rights and freedoms and high degree of autonomy, which underpin its international reputation. Upholding the principle of ‘one country, two systems’, provided for in the legally binding Sino-British Joint Declaration, is vital to Hong Kong’s future success.’

In a BBC Newsnight interview, the Chinese Ambassador to the UK, Liu Xiaoming, struck a notably different tone: ‘The Joint Declaration has completed its mission after Hong Kong’s handover. The “one country, two systems” has been very successful in Hong Kong.’ When pushed, he reiterated: ‘It (The Joint Declaration) is an historic document. It completed its mission.’ The reality is that the Joint Declaration is a 1984 treaty which remains in force until 2047, after which China assumes full control of Hong Kong. Until then, China is bound by it – at least in theory.

Beyond furious diplomatic noises, Britain’s capacity to do anything of substance is very limited. Other governments, from the US to Japan, confirmed the view that Hong Kong should shelve the controversial bill. Speaker Nancy Pelosi tweeted: ‘The hearts of all freedom-loving people were moved by the courage of the one million men & women of Hong Kong who took to the streets to peacefully demand their rights & denounce this horrific extradition bill.’

But China will do what it believes is best for China, secure in the knowledge that the pro-Beijing group holds 43 out of 70 seats on LegCo and that, as a last resort, its tanks can be deployed to restore order on the streets. Although this is very unlikely to happen, the possibility acts as a deterrent. Chinese state media has stated that ‘foreign forces’ were trying to damage China by creating chaos while the foreign ministry said that plots to bring chaos in Hong Kong would not succeed.

As a result of the protests, the extradition law has been suspended, allowing for a cooling off period, perhaps even for a few years. So what will China do next? As Nye Bevan said: ‘Why look in the crystal ball when you can read the history books?’

Since he assumed office seven years ago, Chinese President Xi Jinping has faced persistent international condemnation over his government’s human rights record. But instead of compromising or changing course, he has made hard-line decisions and stood by them.

Beijing seems unlikely to give way for long, and it will eventually pass in some form. The rule of law in Hong Kong, which underpins its international financial status, would therefore be dealt a mortal blow. What that will mean for international business and investment is hard to predict with forecasts ranging from severely damaging to catastrophic.

After the suspension, a further Hong Kong protest – this time peaceful – saw 2m Hong Kong citizens take to the streets. Carrie Lam apologised, but refused to resign, adding that she decided to pursue the extradition law herself, without any influence from Xi or other Chinese communist leaders. But this should not be taken at face value: she is merely showing loyalty to Xi and his authoritarian agenda.

Anxious not to antagonise the Chinese authorities by inflaming the situation, international law firms in Hong Kong are very reluctant to comment on the record: most of them are too reliant on Chinese businesses. But in private, there is significant concern over the increased risk facing the territory. ‘We’re not here to challenge the Chinese government on human rights and free speech issues,’ according to a US law firm partner based in Hong Kong. ‘But the extradition issue is something that affects business. The rule of law is directly correlated to business confidence in Hong Kong.’ Beyond extravagant condemnatory language from the world’s democratic leaders, positive steps to counter erosion of the rule of law are unlikely. The Chinese vice foreign minister has already repeated the familiar line that Beijing will ‘not accept meddling by foreign forces in Hong Kong’s affairs.’ Regrettably, when push comes to shove, the rule of law may yet disappear in Hong Kong long before 2047.

Dominic Carman

Written by:

Dominic Carman, journalist, writer and legal commentator. www.dominiccarman.com