“All about the Rule of Law, No Politics” The Seven-Step Checkmate on Protests - Myths of the Rule of Law and Controversy on Judicial Protests in Hong Kong

"I was really surprised to hear someone say today that the government should be careful not to weaponize the National Security Law (NSL). The NSL is a legal provision that protects national security and the security of Hong Kong. To a certain extent, it can be said to be a weapon of the rule of law itself, punishing those who commit crimes.” - Carrie Lam, Chief Executive of Hong Kong on 8 August 2020

All along, Hong Kong people have had an almost religious faith in law, rule of law, courts, legal profession, and so on.

In the midst of a chronic democratic deficit, rule of law seems to be the last lifeboat that Hong Kong people can cling to so that we can still proudly say that Hong Kong is a place that can be shoulder-to-shoulder to other democratic and civilized societies.

However, with the implementation of the NSL and increasing prevalence of political prosecutions, some people are proclaiming the death of rule of law, while others - especially legal professionals - insist on trusting the law, adhering to their profession, and defending the rule of law.

But the point has never been whether rule of law is "dead" or not, or whether it is worth defending.

In fact the enactment of law has always reflected the will of the powerful; the provisions and effects of law itself have the potential to serve as weapons for the rulers; therefore, when those in power and the citizens argue in the Hong Kong context whether "Rule of Law is undermined or even dead", the "law" they are talking about is the same law, but the "rule" is a completely different politic.

When the processes of political participation and judicial trial still leave room for dissidents to participate, speak out, argue, oppose, and campaign, perhaps Hong Kong people can still tell themselves that even though Hong Kong's "democracy" and "rule of law" are imperfect and flawed, there is still a certain degree of check and balance, room to fight, at least the right to say no and the presumption of innocence to defend. And they can still say that they can progress in a gradual manner over time.

Nonetheless, all of the above have been swept away cleanly today in Hong Kong. Even if we look at the judicial process alone, "the presumption of bail no longer applies" has been written into the Court of Final Appeal’s (CFA) jurisprudence and has become the golden rule for the disposal of NSL defendants; "no jury trial" can be decided by a certificate from the Department of Justice. In fact, no one can monitor, check and balance, let alone stop this - whether the next NSL case will be tried in public; or whether it will be decided by the government initiating the prosecution to prohibit reporters and the public from observing the trial.

Instead of saying that Common Law system, which Hong Kong has long been proud of and on which it relies as an international financial center, has been an obstacle to the implementation of the NSL, it would be better to admit that the NSL has been embedded in the Hong Kong legal system through Common Law – making use of its procedures and courts that still have an image of impartiality, giving law enforcement and prosecutors almost supreme power and legitimacy, while at the same time making it necessary for the judiciary to constantly create jurisprudence, write judgments, and give wrong reasoning.

If we still talk vaguely and generally about "adhering to the rule of law" and "separating law from politics", especially emphasizing the "legal professionalism" in handling political prosecutions, it is undoubtedly an act of pretending to be asleep, and even more so, it is a negative way of subordinating to the regime and promoting "tyranny by law".

However, some commentators believe that even so, legal professionals should not go beyond the thunderbolt of resistance. Otherwise they would be destroying the Great Wall of rule of law and even become direct targets of the regime's suppression.

To answer these questions, we must understand what the regime is trying to achieve by legalizing political issues, and then ask ourselves this: Does every decision we are making contribute to the regime's control of society, or resist the political manipulation of power?

One does not have to look far for an example; the law has long been used as a tool of social management and suppression in Mainland China across the river.

The crime of “Subversion of state power”, and its predecessor, “Counter-revolution”, has been a powerful tool used by China to suppress dissidents since 1951. In the recent past, LIU Xiao-Bo, QIN Yong-Min, and LI Wang-Yang have been sentenced to ten years or more in prison on related charges.

In addition to these high-profile cases, the Chinese Communist Party (CCP) has a variety of legal means to suppress and control the people in all aspects.

The infamous "residential surveillance," or six months of incommunicado detention, was implemented with aplomb through an amendment to the Criminal Procedure Law. The police are also "legally" empowered by the criminal procedure law to detain protesters for 37 days in the name of investigation.

Does the fact that you are not allowed seeing a lawyer or your family members during the scabbard period prove that the public prosecution and law enforcement agencies are abusing their power? Sorry, the Criminal Procedure Law clearly states that if a crime is committed against national security, such interview requires the permission of the investigating agency, and the law never said that friends and relatives have the right to interview.

"Pocket crimes", such as picking quarrels and provoking trouble, disrupting public order, economic crimes, and even fire safety regulations, are commonly used to harass or even detain protesters. CHEN Yun-Fei, a frequent street activist, has been summoned and detained dozens of times for various pocket crimes. If your work involves any kind of publication, it's easy to get a conviction for illegal business, as in the case of Pastor WANG Yi and entrepreneur GENG Xiao-nan.

The dramatic shrinking of civil society space has been achieved by law. The Law on the Administration of Inbound Activities of Foreign Non-Governmental Organizations and the Charity Law have left unpopular organizations with little recourse but to go underground, and all sources of funding through formal channels have been cut off. The real-name system for the Internet, telephone, trains, hotels, etc. was implemented by law; the social credit system, which makes people immobile, was also realized by various legal documents.

The CCP has been achieving its political goals in the name of law. Without the law, the CCP would not be able to conduct such meticulous social management and control. It would be too simplistic and naive to see it simply as violence and barbarism.

The strength of China's laws often lies in their ambiguity and uncertainty.

The origin of the name "pocket crimes" is that any kind of behavior can easily be put into the “pocket”. Even if there are contradictions between the higher and lower laws, even if the laws and regulations are out of touch with reality, even if the laws are overlapping with each other, the law enforcers simply do not (and do not have to) care. As long as the legal provisions can be used by them and can help them manage society, why do they care about contradictions in the logic of law? Anyway, they will not be punished or dismissed for their unconstitutional interpretations. In fact, court decisions do not directly refer to the Constitution.

From this perspective, the more complicated the law is, the more ubiquitous it is, the more contradictory it is, and the more confusing it is to the general public, the better. Because in this way, law enforcers have the most room to interpret the law in any way they want, to achieve whatever they want.

The legal profession in the Mainland has been unable to build any effective resistance. The law is written and the government says so, so let's "act according to the law". The few human rights lawyers who resist are easily removed from the legal profession "in accordance with the law".

The same strategy is now being replicated in Hong Kong.

More and more political figures are being drawn into endless criminal prosecutions; pre-trial detention, which should be the exception, has become the norm under the NSL; public fundraising has become money laundering; registration checks have become false statements; news reporting and commentary can be collusion with foreign forces. Statutory powers to grant permits and confirm qualifications, such as election candidates, teacher registration, and film ratings, have quickly become the sharp knives of political censorship. Under the new Hong Kong law, participating in a primary election, chanting slogan, or being contacted by a consulate can all be labeled as offences.

In the face of raging political opposition, what do the powers want to achieve most?

It is nothing less than a drain on its resources, a silencing, a polarizing, a stigmatizing, and an extinguishing of its existence, while building their own narratives and rationalizing their behaviors.

The judicial system - especially Hong Kong's common law system - has many qualities that facilitate the regime's achievement of these goals.

By legalizing political issues, the regime can:

1. Use legal legitimacy to rationalize political suppression

2. Use the long cycle of the legal process to cool and hush events

3. Use legal languages to re-package and re-phrase social events or movements

4. Use legal processes to drain resources from the public

5. Use legal professionalism to isolate public discussion and individual participation

6. Make use of individual-focused legal processes to dismantle the collective nature of movements

7. Use the institutional nature of law to make it impossible for dissidents to survive in public space

(1.) Use legal legitimacy to rationalize political suppression

A veneer of "legality" is the most effective means of blocking criticism.

The simple stigma of "illegal is wrong" and "illegal is criminal" has long existed not only in the official propaganda but also accepted by many in society - political issues are simplified to "someone breaks the law, the authorities must enforce it, regardless of their political views"; the punishment of political criminals is made to seem grand and unassailable by the legal processes and precedents. If existing laws are not enough, new laws can be created, such as the NSL, or old laws can be activated, such as the colonial hate-mongering clause for prosecution.

With the relatively high acceptance of Hong Kong's judicial system, the regime has given a veneer of legitimacy to its suppression by taking advantage of the general public's respect for the courts, law, and rule of law.

On the other hand, whenever there is criticism, it is re-directed to the judiciary, saying that the judiciary is independent and that the legal profession and the public are being blackmailed by the residual judicial process and its legitimacy - "Is it wrong to use public pressure on the courts? Would it affect a fair trial?" "The law is written in this way and the judges make verdicts accordingly. This cannot be said to be acting on political instructions. To criticize judges indiscriminately is in contempt of the court." "Lawyers take cases and keep them confidential according to the code of conduct. They cannot be said to be ’assigned by the government’"......

On the other hand, if the judiciary does not hand down a heavy enough sentence, the regime will request a review of the sentence "in accordance with the procedure" until the judge has the self-imposed threat that "if I do not impose a heavy enough sentence, I will be reviewed later".

In the long run, if law enforcement continues to be skewed, political prosecutions continue, and the judiciary's remaining legitimacy is not effectively reinforced and corrected, and it is willing to act as a sword and shield for the regime, then in Hong Kong, where "there has never been a separation of powers" and "judicial independence is now too politicized," people will sooner or later lose all trust in the judiciary and confidence in rule of law. The procedures and systems built over a century will not be destroyed, but will become a tool for the regime to eliminate dissidents and suppress justice.

(2.) Use legal languages to re-package and re-phrase social events or movements

Court records, reports, confessions, judgments, and statements are all important records that shape a social movement. However, unlike discussions in the public sphere or speeches in the political arena, courtroom discourse has its own set of linguistic logic, which often does not match the demands of the social movement itself.

The court is concerned with guilt and innocence; it wants a legal analysis, a concise presentation of the facts. As a result, an intricate movement is narrowed down to a few moments of crime and reduced to individual decisions and actions. It does not want to know about the masses and emotions, the contradictions and human nature, the causes and consequences, and it does not want to judge even if it knows, because it does not need to. Thus the content of courtroom presentations of cases arising in the context of social movements is necessarily difficult, if not impossible, to reflect the full picture of social movements and the relevance of this full picture to individual cases.

This is especially true in criminal cases. In criminal cases, the burden of proof is on the prosecution, so for the defense in many cases, the best defense strategy is to say little or nothing, not to provide clues, and to wait for the prosecution to find insufficient evidence, rather than risking more talk and more error. This is a setup that protects the rights of the individual defendant, but this mindset has weakened the defense's argument in prosecutions against social movements and even caused the movements to lose their voices at trial.

From the perspective of winning a lawsuit, the defense should indeed try to use all the most favorable institutional design, including the right of silence, or use the language of law to dismantle and package a social movement. From the perspective of a social movement, once the voice and argument are abandoned, once the defending politician flinches the case is already lost by more than half.

In mainland China, there is less of a struggle, because the right to remain silent is basically non-existent. It is best if the defendant can speak openly and honestly, and even if he is forced to confess, there is no moral pressure to reverse the case later, and the outside world will tacitly acknowledge that testimony obtained under torture cannot be taken seriously. In Hong Kong, however, the environment is not desperate, but rather a complex change and test, whether to remain silent, to defend themselves, or to make an impassioned statement without remorse, will be seen as the defendant's own choice, whether to justify their political choices, to justify their participation in the social movement.

The question of whether or not it is worth it, who is qualified to weigh it, and who is qualified to decide, is never a question that can be answered by the legal profession alone, and may not even be a question that can be answered well by the legal profession.

(3.) Make use of individual-focused legal processes to dismantle the collective nature of movements

As mentioned earlier, the language of criminal law is that of the individual.

The focus of the defense in each case is often on what the defendant thought (criminal intent) or did (criminal conduct) in order to determine whether the defendant is guilty or not and what responsibility he or she should bear. In the post-bail or post-conviction plea, the defense will present the defendant's life story and argue that the defendant deserves mercy and compassion. This kind of trial process, which focuses on individual behavior, is appropriate for creating individual heroes and exaggerating differences among individuals, and is not favourable to "united action", much less as a conclusion to a social movement in which countless people have participated.

When the charges are based on some kind of collective action, or "conspiracy," when all the leading figures in a movement are swept into the legal net and linked together, the easiest defense tactic is distancing from the collective perspective and take the defendant out of the picture: "I wasn't involved", "I didn't have a common purpose", "I had different ideas", "You can't prove we were in it together.”  At the same time, even if the defendant were to put oneself aside and speak for the class, the court might not want to hear it.

Paradoxically, the defendants' statements at trial often have the effect of summing up the movement – at least on a judicial level. Who will speak for the movement? Can a decision to "speak for the movement," which is inconsistent with the defense's strategy of maximizing its interests, be successfully implemented in a trial with assistance?

(4.) Use legal professionalism to isolate public discussion and individual participation

To give a voice to the movement in political trials, it is imperative to open up the key channels between the defendant and the court, and between the court and the public.

In mainland China, where there is no room for argument throughout the trial, human rights lawyers, as the only channel for prisoners of conscience to reach out to the outside world, often take on the role of spokesperson and liaison for the case. In the early days of the human rights movement in China, many cases were reported by human rights lawyers before they were disseminated to the outside world, and human rights lawyers served as a liaison between all parties, maintaining the heat on prisoners of conscience through continuous commentary and action.

Hongkongers are no stranger to such style today. In the "12 Hongkongers” case, Attorney Mr. LU Si-Wei would comment on the case at key points in the process, discussing the circumstances of the case, the obstacles, and the legal analysis, guiding the community's attention and discussion, as well as raising points of contention and defenses that "government lawyers" would not raise at trial.

On the contrary, the "professional relationship" between the defendant and the defense attorney in Hong Kong is quite disempowering for the defendant, and the professional advice of the attorney often overrides the personal judgment of the defendant.

Some examples are that almost no Hong Kong lawyer will give his or her client a "review" of his or her statement prior to presentation, or explain in detail to the client various legal points and arguments in his or her statement. Lawyers expect defendants to tell them the facts they need to know and trust them to make the best possible defense within the defendant's instructions. If the defendant is unwilling to accept the lawyer's approach and insists on expressing points that are "useless" or even "harmful" from the legal profession's point of view, there is a good chance that their relationship will end.

In the courtroom, a legally represented defendant cannot suddenly ask to interject or defend himself, and the judge will say, "You have legal representation, so let him speak.” This attorney subrogation is problematic when it is clear that the trial is not a legal issue but a political one.

At the public level, this professional isolation is even more pronounced.

It is well known that "no one should comment on a case that has entered the judicial process" and that lawyers must adhere to the confidentiality requirements of the Code of Conduct. The original intent of this separation from public discussion was to protect the fairness and independence of judicial decisions, based on the trust that the court would make fair and impartial decisions. However, when jury-less trials begin to occur in NSL cases; when the persuasiveness of the appointed judges' decisions is in doubt; when the prosecution is able to obtain a remand order in court without sufficient evidence - thus prolonging the "period of judicial silence"; when the regime and the pro-government media are never shy about insulting and smearing opposition members who are already in the judicial process: is silence and non-discussion the appropriate and best response?

(5.) Use the long cycles of legal process to cool and hush events

Since the removal of the presumption of bail in NSL, the "judicial silence period" in Hong Kong has become even longer based on the backlog of social movement cases. The long legal process is like a huge buffer belt that impedes the momentum of the movement and dulls the backlash against the regime. By the time the butcher's knife chops, many people's eyes may have already turned elsewhere.

In mainland China, although the criminal procedure law has relatively clear rules on the duration of each stage of the judicial process, in practice, each stage can be extended arbitrarily and indefinitely to meet the needs of either the public prosecutor or the court. In political cases, unjustified prolonged secret detention and repeated extensions of procedures are the norm. During this period, defendants are never brought to court, lawyers and family members are not allowed to see them, and defendants can be said to have disappeared. This often makes it difficult to recall public memory and concern when they are brought to trial. Furthermore, many trials are behind closed doors, leaving no room for discussion.

In Hong Kong, the time limit is unclear, and the case is basically in the hands of the prosecution and the court. As long as the defendant is brought to court for arraignment at regular intervals, the prosecution can essentially apply for an extension of time during which the defendant can continue to be remanded in custody. Even if the trial proceeds, Hong Kong's trial procedures and evidence requirements are more stringent, which is good, but has the side effect of further lengthening the process.

If the presumption of bail is still in place, the person can still move and speak while on bail and maintain his or her connection to the community and the movement. By now, not only the presumption of bail no longer exist in NSL cases, but also the conditions of bail must at least meet the requirements of "no more public statements, no more media interviews," and even the closure of the defendant's social media accounts. Like what Emilia WONG, the girlfriend of Ventus LAU Wing-hong in the "47 People Case", said - even if he were released on bail, it would be a "social death" for the defendant.

(6.) Use the legal process to drain resources from the public

The lengthy legal process consumes not only the minds of the accused, the momentum of social movements, the attention of the general public, but also real money - financial resources that could have been used for many other building blocks of civil society if not for the staggering number of arrests, prosecutions, and judicial proceedings.

In the case of the 612 Humanitarian Relief Fund, for example, the Foundation's financial briefing shows that as of May 31, 2021, the Fund's total income exceeded HK$236.38 million. However legal-related expenses, including legal fees, legal aid contributions, prepaid legal fees, and second barrister fees, sum to over $158.32 million, or nearly 67% of the Fund’s total income. The legal fee support of $100 million was the highest single item of the Fund's total grant and expenditure.

The same scale of expenditure could probably support dozens of small NGOs to advocate for various issues, but now, all these resources accumulated in the community are spent on the judicial process, and a lot of manpower to assist. The Administration's ability to control the allocation of resources to the community by filing lawsuits on a continual basis has undoubtedly affected the broader civil society advocacy, and has led advocacy groups and pressure groups down the path of “stacking up poverty and weakness”.

(7.) Use the institutional nature of law to make it impossible for dissidents to survive in public space

The ultimate function of law is to delineate the legal and illegal, the above-ground and underground worlds. When the regime uses law to enforce "political red lines", ideas, actions, groups, and individuals that are not welcomed by the regime can all be made illegal and forced into the underground world.

An organization that cannot legally exist cannot open a bank account, raise funds, hire staff, speak out publicly, and gain acceptance among the public, let alone survive and grow in size. The same kind of systemic exclusion can happen to individuals. In mainland China, it is no longer news that dissidents and their families have been subjected to constant surveillance, interference, and harassment, evicted by their landlords without reasons, their children denied access to schools, and even forcibly escorted out of where they live by powerful local authorities.

What is even more frightening is that many people who have been in and out of prison for decades in mainland China for the democracy movement, such as LIU Xian-bin, CHEN Wei, QIN Yong-min, and CHEN Xi, are not known to the mainland public because of this public exclusion and isolation. Even those who received international attention, such as LIU Xiao-Bo, were not forgotten by the world only because they "luckily" gained visibility during the window when they could still operate in public.

Undergrounding and invisibility, combined with harsh laws and state-led stigmatization, inevitably led to the fragmentation and demise of the movement - the resistance was not seen and understood, so no more resistance could be induced. The activists could not see their peers, and they would easily become isolated and desperate; the courage of the desperate would not be supported, and might instead be ridiculed and spat upon. So the movement would be easily extinguished without a trace.

Those who have sacrificed lives after lives in the past are not seen, understood, remembered, and inherited. The external world’s attention disperses after a period of enthusiasm, while many in the country may turn around and despise those who resisted. This is what the author sees after observing China’s democratic movement for years. This is also a concern about the future of Hong Kong’s democratic movement.

Closing Remarks

The power of a post-totalitarian state lies in the internalization of social manipulation through ideology. No matter how hollow the rulers' ideological theories are, as long as everyone is still willing to verbally embrace and apply them, the taming and control of the whole society is manifested.

In the Mainland, those ideologies are Communism, “MAO Ze-dong Thought” and “XI Jin-ping Thought”. In Hong Kong, these theories lack soil, so a concept that people originally cherish is snatched, alienated and applied.

"Law-abiding" and "rule of law" are such correct and impeccable concepts. But when the boundary between legality and illegality becomes increasingly blurred; when the law no longer protects human rights and freedom; and when political directives are issued in the name of law, what is the point of emphasizing the "legality" of resistance?

If this argument is still relevant, it is whether we are willing to surrender the court and the rule of law as a (battle) field.

We can certainly adopt the approach of giving up, of not fighting, of acknowledging the absolute control of the law by those in power, of denying the connection between the law and right and wrong, of not spending resources and attention on court arguments, of "admitting guilt but not wrong" as a strategy. But this can be a strategy based on the premise that we are not giving in, but denying; not pleading guilty, but just cutting a deal.

We can also choose to challenge the distortion of law and rule of law by the powerful, pointing out that the emperor is naked. After all, there are universally recognized standards for what law should look like and what rule of law should be. If the authorities' interpretations of law and prosecution violate the rule of law and human rights protection, then we should not endorse their interpretations and think of how to prevent the aforementioned seven conditions in the judicial process from arising and worsening.

The most undesirable is to pretend that they don’t see the infiltration of political power into the judicial system; to obediently act as a nut-and-bolt in the legal system; to adjust one's behavior and opinions according to the power's interpretation of the "law"; to continue to play the role of "law-abiding people", "professionals" or even "defenders of the system"; and to cover up one's ears and go through the motions according to rules of the game that are still allowed. To a certain extent, this is tacitly allowing and even promoting the "tyranny of the law"; becoming the enforcers and enablers of what are called laws but actually political orders; and becoming accomplices in turning the term "rule of law" into an empty ruling slogan.

The rule of law, as an ideal, has never lived or died. If this ideal is still alive, it is living in every person who still demands justice from the law; living in every challenge to unjust laws; living in the uncompromising persistence, reflection, and struggle for justice even when the building is about to collapse – even when faced with uneasiness of not relying on professional authority; confusion of not being able to find answers; and apprehension of breaking old and new rules.

For only in this way can we break the deadlock set up by the regime in the name of law.

Source: The Stand News #Jul01

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