Hong Kong protesters have but one demand: The rule of law

Hong Kong protesters have but one demand: The rule of law
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The 2 million demonstrators in the streets of Hong Kong earlier this month turned out to support a fundamental principle: rule of law.

Rule of law makes Hong Kong a special place and sits at the foundation of the “one country, two systems” approach promised by China when it assumed sovereignty from the British in 1997. 

All the foreign countries doing business with China, as well as China and the people of Hong Kong, have a fundamental interest in Hong Kong as a center for business and professional services. In Osaka, Japan this weekend, the other Group of 20 (G20) leaders should tell Chinese President Xi Jinping how important Hong Kong is to them.

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The second article of Hong Kong’s Basic Law, adopted as part of the handover, promises that Hong Kong will have “independent judicial power, including that of final adjudication.”

Hong Kong people have the right to be judged under established common law. Many people in Hong Kong — from those who swam over in the 1960s to those who relocated their companies and families from the mainland in recent decades — came to Hong Kong to benefit from this basic right. 

Foreign firms that maintain regional offices in Hong Kong to support their businesses on the mainland and in Southeast Asia, use Hong Kong’s high-quality financial, legal, accounting and other services because the legal and regulatory framework there is solid and not subject to political pressures as it is on the mainland and often elsewhere. The life and livelihood of Hong Kong stand on the rule of law.

The concern with the extradition law stems from fear of the political nature of justice on the mainland. With secret courts, secret evidence, predetermined convictions, judges loyal to the Communist Party, no real defense lawyers and a harsh, closed prison system, the idea of sending a defendant to the mainland — however guilty he or she is — goes against the principles of the common law tradition of Hong Kong, the U.S. and the many other jurisdictions that are reluctant to send criminals to China for trial. 

The prospect of being forced to turn over citizens who are wanted for political crimes or on the basis of trumped-up evidence not subject to questioning leads many in Hong Kong to conclude that their entire legal system would be undermined by the extradition proposal. 

Beijing’s actions in recent years — like the abduction of five booksellers from Hong Kong to the mainland —  already demonstrate a complete lack of respect for the integrity of Hong Kong’s laws.

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Indeed, judging by the size of the demonstrations, rule of law means more to Hong Kongers than the promises of democracy. The Umbrella Movement of 2014 marshalled a peak of about 100,000 dedicated demonstrators, pressing for implementation of a somewhat ambiguous promise of “universal suffrage” in the Basic Law.  

While many of us may agree with those demonstrators as well, it is noteworthy that the rule of law movement easily turned out over 1 million people several times, including the day after the chief executive, Carrie Lam, backed down.

Press reports in Hong Kong indicate that she originated the extradition proposal because of the murder in Taiwan of Hong Kong citizen Poon Hui-wing. Poon’s boyfriend, who apparently admitted to committing the crime, could not be extradited to Taiwan because Hong Kong does not have an extradition treaty with another part of China (as Beijing sees it). 

Criminals fleeing jurisdiction on the mainland end up in the same situation. Whether the proposal sprang from the chief executive’s concern about a murder or came from Beijing, it now appears that mainland authorities counseled Chief Executive Lam to pull the plug on her extradition law when she consulted with them after the biggest demonstrations. 

Her statement withdrawing the legislation reads like a classic communist party self-criticism: She accepted full responsibility, left no blame for mainland leaders and "apologized to the people of Hong Kong ... and pledged to adopt a most sincere and humble attitude to accept criticism and make improvements in serving the public."

Another equally threatening law on national security hovers in the background. Article 23 of Hong Kong’s Basic law says Hong Kong will enact a law to prohibit "treason, secession, sedition (and) subversion" against the national government.  

Such a law would open Hong Kong citizens up to the same kind of judicial kidnapping they feared under the extradition proposal. Hong Kong and Beijing’s leaders, over the past 22 years, have wisely not insisted on such a law but any proposal would likely raise all the same concerns as the recent extradition proposal.

So, what happens next and what should the United States and other supporters of Hong Kong’s legal and judicial autonomy do? 

First, do no harm. We shouldn’t punish the people of Hong Kong, withdraw the recognition that the Hong Kong Policy Act gives to their unique situation or otherwise squeeze them between our interests and those of China.

Second, the U.S. and others must make clear that our interests in Hong Kong — economic, personal, educational and cultural — rest on the rule of law. G20 leaders can make this clear to President Xi Jinping in Osaka and their representatives in Hong Kong should they speak out.

Third, make clear that if there is ever to be a new proposal to prevent murderers or criminals from escaping justice by travelling to Hong Kong, it should rely first and foremost on careful judicial review in openly contested hearings in Hong Kong or charges that must be pursued and proven in Hong Kong courts.

Hong Kong jurists should be asked to come up with proposals if necessary, not politicians, bureaucrats or Beijing’s representatives.

Fourth, make clear that the national security law is a sleeping dog that should be left lying.

No one will benefit from extradition or national security legislation that undermines the integrity of the rule of law in Hong Kong:

  • not the Chinese economy, which benefits from this unique channel for foreign investment;
  • not the foreign investors, who come for the quality of the regulatory and judicial environment;
  • not the Chinese companies, which raise capital and book foreign transactions there; and
  • most importantly, not the people of Hong Kong, whose lives and livelihood grow in the fertile soil of Hong Kong’s common law legal system.

Richard Boucher is a career ambassador who served as U.S. counsel general in Hong Kong from 1996-98.