Hong Kong’s 45 jailed democrats: What exactly is now illegal?

Hong Kong Free Press

One of the distressing things about writing for the media in Hong Kong these days is that there is one law for the government’s supporters and another for the rest of us. The system is, as a Brazilian president once put it, “for my friends, everything; for my enemies, the law.”

Police officers outside the West Kowloon Law Courts Building on November 19, 2024, ahead of the sentencing hearing for 45 pro-democracy figures in Hong Kong's largest national security case to date. Photo: Kyle Lam/HKFP. — Police officers outside the West Kowloon Law Courts Building on November 19, 2024, ahead of the sentencing hearing for 45 pro-democracy figures in Hong Kong’s largest national security case to date. Photo: Kyle Lam/HKFP.

So, during the trial of 16 democrats who pleaded not-guilty to conspiring to commit subversion over their roles in a primary poll, writers in pro-government publications were free to imply that all the defendants were guilty of the crimes charged, and some of them were guilty of other things as well. This used to be illegal. The offence is known as strict liability contempt of court.

You are not allowed to imply a particular conclusion for the trial, so it is also illegal to imply that the defendants are innocent. None of the numerous people who held this view dared to publish it. There has only been one prosecution for this offence in the last two decades; the accused publication was Apple Daily. One gets the message.

However, now the matter has concluded, a few local voices, and some overseas ones, have ventured the opinion that all was not well with this case. And in due course this produced a predictable response from the government, and some more interesting ones in other places.

Oddly, though, these responses tend to ignore the most important criticisms. The question which has been awaiting an answer since before the trial, and indeed before the primary, is: how can this possibly be illegal?

Democrat primary election — People stand in line to vote in the democrats’ unofficial primary election in July 2020. Photo: Studio Incendo.

Having removed himself to a safe distance, Jonathan Sumption (a very senior retired judge) put it bluntly. The Basic Law, he said, explicitly authorised the Legislative Council (LegCo) to reject the budget and force the city’s leader to resign. It now appeared that “LegCo cannot exercise an express constitutional right for a purpose unwelcome to the government.”

Sumption characterised the situation as “legally indefensible.” This is a serious fundamental objection to the whole case. The LegCo has a power conferred by law, and a procedure specified through which that power can be exercised. How can it be illegal for a candidate for election to say that they will, if elected, activate the procedure and exercise the power?

This point seems to elude commentators. Even Cliff Buddle, in an otherwise admirable dance along the tightrope that independent commentators all perform on these days, summarised the crime as the democrats intended to “blindly veto the government’s budget”. But blindness had nothing to do with it.

The procedure was intended to allow the resolution of a situation in which the council and the chief executive could not get on with each other. The merits of the budget as a budget were not relevant.

basic law constitution china chinese — Hong Kong’s Basic Law. File photo: GovHK.

Of course, times have changed since the Basic Law was drafted in the 1980s. It seemed conceivable then that in some unlikely set of circumstances, and with a procedure designed to be discouraging, there might eventually be an occasion when it was acceptable for an elected LegCo to dispense with the services of an elected chief executive. And the mainland Chinese officials who were “consulted” about the law went along with this.

Nowadays mainland officials are all subscribers to the theory of “whole-process democracy,” in which wisdom descends the pyramid from layer to layer like those extravagant displays in which a large bottle of champagne is used to fill several layers of wineglasses. The idea of someone appointed by them being fired by a local legislature is not acceptable at all.

The second objection which seems to have passed defenders of the prosecution by is that the prosecution’s case is based on the notion that sacking the chief executive would precipitate a “constitutional crisis,” paralyse the government or overthrow the system.

person pouring liquor in cocktail glasses — Photo: Dmitry Zvolskiy/Pexels.

This is an entirely fictitious prospect drummed up to justify longer sentences. Whatever the organisers of the referendum may have dreamed, the Basic Law provides for a continued orderly and effective government at all stages of a bid to fire the chief executive. If there is no budget the government is authorised to continue with the old one. If there is no chief executive, another official takes over pending the election of a replacement.

Of course, there would still be considerable embarrassment for whoever chose the leader in the first place. But embarrassing officials is not a crime. Is it?

More forgivably, local commentators do not seem to pick up the fact that people overseas are considering the case in its context. As a poet once put it “You can tell a man who boozes by the company he chooses,” and the same thing applies to government actions.

For a government to jail large numbers of opposition politicians will always inspire suspicion. OK, politicians do get up to mischief, but are our guys completely innocent?

However when said jailing is accompanied by a blizzard of stories in which election rules are changed, critical people are prosecuted for long-forgotten offences, companies and societies are abruptly closed, student unions disappear, and laws are changed to make it easier to prosecute… well never mind the details. The view from a distance is based on the overall impression: if it looks like a duck, walks like a duck and quacks like a duck… it’s a duck.

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HKFP is an impartial platform & does not necessarily share the views of opinion writers or advertisers. HKFP presents a diversity of views & regularly invites figures across the political spectrum to write for us. Press freedom is guaranteed under the Basic Law, security law, Bill of Rights and Chinese constitution. Opinion pieces aim to point out errors or defects in the government, law or policies, or aim to suggest ideas or alterations via legal means without an intention of hatred, discontent or hostility against the authorities or other communities.

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