Can Hong Kong’s Courts Save the City?

ImageProtesters clashed with riot police at the Chinese University of Hong Kong in Sha Tin on Tuesday.
Credit…Lam Yik Fei for The New York Times

HONG KONG — It both comforts and depresses me, as a lawyer who has practiced for four decades, that every day over the past few months I have been besieged on Facebook by anxious Hong Kongers urging me to take legal action to help protesters.

I have been asked to demand investigations into mysterious deaths, allegations that people have been raped while in police custody and claims that police officers have been impersonating protesters. Some people seek redress for police brutality. Others want to pre-empt the routine use of tear gas in crowded public transportation, old people’s homes, shopping malls, universities or the central business district.

That people come to me is comforting: It suggests that even though the government and the Legislative Council have failed us, Hong Kongers still believe in our judges. It is depressing because I fear that they will be disappointed.

Initiating litigation against the government, particularly in very political cases, is an uncertain and very expensive endeavor at any time. The government has unlimited money — the taxpayers’ money — to hire a large legal team, and so even if it loses a case in the first instance, it can appeal it all the way to the final court. You, the citizen, might have found lawyers to represent you for free, but should you lose, you may have to foot the government’s legal bill — in some cases, risking bankruptcy.

The odds are also stacked against you. Judges are conservative by nature and trained to give the establishment a wide margin of appreciation. They are not the ones fighting protesters on the streets; they are not the ones making the tough political decisions. They should be slow to criticize those in the hot seat for getting something wrong.

More ominous, in 2014, the Chinese State Council issued a white paper about governance in Hong Kong, which required, among other things, the city’s judges to be “patriots.” Way back in the summer of 2008, Xi Jinping — then China’s vice-president, now its president — called on the three branches of government in Hong Kong to “cooperate.

For China’s leaders, law is a political weapon; they routinely refer to governing the nation “in accordance with the law.” This may sound like the same thing as “the rule of law,” but it is nothing like that: It merely justifies the rule of those in power and ensures that they are above the law.

If judges in Hong Kong issue a decision with political consequences that the Chinese authorities deem unwelcome, it can always be overruled by the Standing Committee of the National People’s Congress, which is vested with the ultimate authority to interpret Hong Kong’s Basic Law, or mini-constitution. Let us not underestimate the tremendous pressure many of our judges have faced dealing with the highly sensitive and politically charged cases that have come to them in recent years.

Earlier this week, the police and anti-riot squads attacked the campus of the Chinese University of Hong Kong, firing hundreds of cans of tear gas and rubber bullets, and spraying parts of the campus with a toxic blue liquid. By Tuesday night, the university gym had been turned into a makeshift hospital, as though on a wartime battlefield. Joseph Sung Jao-yiu, a former vice chancellor of CUHK and a gastroenterologist, came with a team of doctors to help treat the injured — more than 110 people.

The police did have reason to take action that day: The CUHK campus is connected to a public footbridge that hangs over a major highway, and the footbridge was occupied by protesters who were throwing bricks and petrol bombs, blocking traffic and endangering the public.

Whatever the protesters were doing did not justify the authorities’ disproportionate response, however. Even CUHK’s current vice chancellor, Prof. Rocky Tuan, wasn’t spared being tear-gassed: He tried to defuse the situation with the police, but was told that he could not control his students and now was no time to negotiate. The clashes lasted for hours. Black mushroom clouds hung high above the campus and could be seen from a great distance.

Late Tuesday night, at the height of the confrontation, I was approached by Jacky So Tsun-fung, the president of the CUHK student union. He wanted to apply for an urgent injunction to stop the police from breaching the campus without a warrant and bar the use of crowd-control weapons without the assent of university authorities. Some students had become very emotional; word was circulating that one of them (and perhaps more) was considering suicide. But the judge declined to hear the application that night and wanted the police to be notified.

I met Mr. So the next morning. He has a shy, boyish face, delicate features and a mat of hair like a K-pop idol. The first thing I did was give him a big hug. His shoulders felt too small for the large burden he was carrying. I don’t mean just the burden of litigation; I mean the burden of being young in Hong Kong these days and daring to stand up or speak out. Young people are targeted, stalked and at risk of physical attack. Even secondary-school students in uniform have been stopped on their way to school, searched and harassed by the police.

There is no denying that violence has been committed by the protesters, too. But during our hearing on Wednesday, while the police’s lawyers wouldn’t tell the court how many tear-gas canisters officers had used at CUHK, they were quick to say how many petrol bombs had been thrown at them.

Never mind, apparently, my argument that at times as difficult as these, there is all the more reason to hold authorities accountable for any abuse of power. And that we, the public, are looking to the courts as our last safeguards. The judge dismissed our application.

And yet the Hong Kong courts have readily granted the police sweeping injunctions. There was one last month, cast in broad and vague terms, that barred anyone from “unlawfully and willfully” disclosing the personal information of police officers or their relatives. Naturally, no one was there to argue against the measure: Why did the court find it necessary to enjoin putative and nameless defendants from breaking the law?

Also last month, the government issued a regulation banning face masks at gatherings. Even as it insisted that Hong Kong was not in a state of emergency, the administration of Chief Executive Carrie Lam ordered the mask ban by invoking outdated, colonial-era emergency legislation — paving the way for more draconian measures in the future. Several legislators have challenged the regulation in court. A ruling is expected Monday.

Whatever the outcome of that case, it would be naïve at this stage to think that a few lawyers and judges can defend the rule of law in Hong Kong. Once the city’s pride, the rule of law cannot survive under the pressure of a government that does not respect fair play, freedom or democracy.

Audrey Eu Yuet-mee, a barrister, is a former member of the Hong Kong Legislative Council and a founder of the Civic Party.

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