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Hong Kong lawyers must speak up for counterparts detained in the mainland

By Alvin Y.H. Cheung, Progressive Lawyers Group.

At first glance, China’s ongoing campaign of arrests, disappearances, and “invitation to tea” involving scores of lawyers active in human rights defence might seem to have little relevance for the average Hong Konger. The rise of localism has made it fashionable to view events in mainland China, like the Tiananmen Square massacre or the mass disappearance of lawyers, as unpleasant but ultimately “somebody else’s problem”. Such views, however tempting, bear little relevance with reality.

The moral argument, although easily understood, deserves restating. Hong Kong cherishes its rule of law as fundamental to the flourishing of society. Hong Kong’s lawyers have (as my colleagues have emphasised) a clear moral obligation to support their mainland Chinese colleagues, who are seeking to advance the rule of law in the face of considerable risks to their lives. We and our clients have benefitted greatly from the law reform efforts in mainland China that have occurred thus far. It would lie ill in the mouths of Hong Kong’s lawyers if they did not speak up on behalf of their beleaguered Chinese colleagues.

Nonetheless, even if we leave moral calculations aside, an assessment of Hong Kong’s self-interest demands that we be concerned with the latest anti-lawyer offensive by the Chinese government.

June 4 2015

June 4, 2015. Photo: Tom Grundy.

China’s targeting of rights lawyers reflects Beijing’s cynicism about the role of law in relation to government and society, a cynicism that is beginning to be reflected within the corridors of Hong Kong’s government. Beijing’s attitude towards law, as reflected in the recent arrests and disappearances, is a purely instrumental one. As Professor Jerome Cohen of NYU explained in an interview with the Wall Street Journal: “If human-rights lawyers can be neutralised, then the [Communist Party] will have the ideal situation: laws that look good on their face, but are never applied in ways that will interfere with government politics.”

Although attitudes in Hong Kong are not as extreme, we see a hint of this instrumentalist rhetoric from current Secretary for Justice Rimsky Yuen. In his speech to the HKU Convocation on 20 June 2013, Yuen seemed much more concerned with promoting Hong Kong as a centre for commercial dispute resolution – in short, for the use of law as a means to make money – than with issues such as criminal justice or legal aid reform. Not once in his speech did the word “justice” appear (except as preceded by the words “Department of…”). Such attitude towards the rule of law does not bode well for its preservation in the face of actual or perceived economic benefits.

The recent wave of arrests and disappearances also represents the latest in Xi Jinping’s ongoing campaign to silence all forms of political dissent – a campaign that should concern people in Hong Kong as well as in mainland China. The national security law passed by the National People’s Congress on July 1 exemplifies Beijing’s current attitudes.

Article 2 of the law defined “national security” as encompassing “international or domestic threats to the state’s power to govern, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major national interests, and the ability to ensure a continued state of security”. The definition is so broad that it is effectively meaningless. It paves the way for governmental intervention in areas as diverse as the stock market, online discourse, and “resisting negative cultural influences”. Alarmingly, the National Security Law also referred to Hong Kong’s “responsibilities” for “the preservation of national security”.

June 4, 2015

June 4, 2015. Photo: Tom Grundy.

It remains to be seen what the national security law will actually mean for Hong Kong, but three potential problem areas have stood out. First, Hong Kongers who travel to mainland China now face a host of additional legal, as well as extra-legal, risks. Yuen’s characteristically feeble refusal to guarantee that Hong Kongers in mainland China would not be prosecuted under the law suggests the government’s likely level of concern with protecting residents from the Chinese security state.

Second, the National Security Law will result in greater repression at home. The suspiciously specific denials from officialdom that the law would not be used to force the legislation of Article 23 through Annex III of the Basic Law are far from reassuring.

Third, the wildly expansive definition of “national security” might be read by the Hong Kong government, or by the China Liaison Office in Hong Kong, as a blank cheque to trample over the rule of law and fundamental rights, even in the absence of further legislative measures.

Even if neither of these consequences come into existence, freedoms of Hong Kongers are being whittled away by the deep Chinese state. Religious organisations based in Hong Kong are already in hot water for proselytising to mainland Chinese students based in Hong Kong (for violating the Regulations on Religious Activities of Foreigners in China). Such extraterritorial application of mainland Chinese rules to activities conducted by Hong Kongers in Hong Kong will create fear, uncertainty and doubt about where the boundaries lie, even outside of mainland China.

The ongoing crackdown on lawyers should not be viewed in isolation from these developments. Rather, it is a symptom of the broader attack on civil society, and a harbinger of what might happen in Hong Kong in the absence of vigilance. The attitude that Hong Kongers should not seek out trouble by voicing their support for Mainland rights lawyers might be tempting. But the prevailing political winds in Beijing suggest that, if we do not speak up on behalf of rights lawyers in the Mainland, trouble will – sooner or later – come for us too.

Alvin Y.H. Cheung inexplicably left his practice at the Hong Kong Bar for browner pastures in the United States. He was a visiting scholar at NYU’s U.S.-Asia Law Institute from 2014 to 2015.

Hong Kong lawyers must speak up for counterparts detained in the mainland