What an American case says about the future of the courts in Hong Kong

December 7, 2019 came to the end of a year of unrest in Hong Kong. Since the spring, people have been protesting against an extradition bill that opponents saw as a threat to Hong Kong’s autonomy. The agitation branched off the city: you were yellow, with the demonstrators; or blue, with the police.

These were the undercurrents in Hong Kong when, crossing Causeway Bay station on December 7, 2019, Samuel Bickett saw a man hitting a teenage boy with a baton.

“Whether it’s a protest day or not, you see a guy in civilian clothes beating people up, your first thought is’ this guy, cop or not? “” Bickett said in a recent interview in Hong Kong.

A video of the meeting shows a passerby asking the man in English if he is with the police. He first denies that he is, until he finally says yes. By this time, Bickett had grabbed the staff to try to disarm it. The two clashed. Bickett was convicted of assaulting a police officer and sentenced to four months and two weeks in prison.

Bickett, a 37-year-old American who then worked for Bank of America Merrill Lynch in Hong Kong, has been out of jail on bail since August as he appealed his conviction and sentence.

A hearing is scheduled for Monday morning local time. Bickett wants justice for himself. But his case isn’t just his – it intersects with Hong Kong’s own turmoil, sparked by Beijing’s ever-stricter crackdown on the city’s democratic freedoms. This has become another marker of the lack of police accountability and of the deep concern over the deterioration of the rule of law.

When Britain brought Hong Kong back to China’s control in 1997, it was with the understanding that the territory would be governed on a “one country, two systems” principle. Hong Kong would maintain an economic and political structure separate from mainland China until 2047. This includes Hong Kong’s common law tradition, an independent judiciary, and protections for certain freedoms such as speech.

The Chinese Communist Party has sought to erode the separation between the two systems. In the aftermath of the 2019 protests, he stepped up efforts to dismantle it entirely. Covid-19 restrictions clamped down on mass protests in Hong Kong, and in the summer of 2020, Beijing imposed a national security law targeting crimes, such as secession, subversion, collusion with foreign powers and terrorism. He foreshadowed a crackdown on dissent in Hong Kong. This week, a 30-year-old man was sentenced to more than five years in prison for “inciting secession”. He shouted pro-Hong Kong independence slogans in public.

The Bickett case is not a national security law case. But the National Security Law is reshaping Hong Kong’s institutions and the wider legal system. “The government has manipulated the criminal justice systems for political ends,” said Eric Yan-ho Lai, a Hong Kong law researcher at the Center for Asian Law at Georgetown Law School.

This manipulation – things like punishing political activists or pressuring companies to release information under national security law – happens because “Beijing has used different techniques to notify courts if they don’t behave, ”Lai said.

A prison van arrives at the West Kowloon courthouse in Hong Kong on September 23, 2021, when 47 pro-democracy defendants appeared in court charged with conspiracy to commit subversion under the Security Act national law promulgated by Beijing.
Isaac Lawrence / AFP via Getty Images

“To behave” is to embody the interests of Beijing, which, for the moment, means eliminating any questioning of its authority. An independent judiciary cannot function in this scheme. “I don’t think you can say that the rule of law exists in Hong Kong in any meaningful way at this point,” Bickett said this month. Yet it is something he is fighting for, even if one of the only ways to do it is through a legal system that is being emptied.

Bickett’s case is part of a larger debate over police accountability

Bickett says he tried to intervene because he feared the man with the stick would attack other people. In a video of the incident, a passer-by approaches the officer, later identified as Yu Shu-sang, and asks him in English: “Are you popo?” a slang term for cop. The officer answers “no”. And although the officer in plain clothes later says “yes,” according to Bickett and his appeal documents, the officer also denied having been a police officer on multiple occasions prior to what was captured on the video. Bickett says he didn’t hear the “yes” and even if he had, he would have doubted it because of the repeated denials.

The two found themselves in a fight for the stick. Bickett says he hit the officer in self-defense, and that Yu Shu-sang his refusal to identify himself and his unreasonable use of force (it turns out the teenager was suspected of show jumping) violated the Hong Kong Police Code of Ethics. (The Hong Kong Department of Justice declined to comment on individual cases.)

Ultimately, the magistrate in the Bickett case decided that Yu Shu-sang was a reliable witness, and although he initially denied being a police officer, “popo” was a “disrespectful reference” and had a “degrading meaning” and therefore “the fact that he denied having been called as such does not make me think that he was trying to conceal his identity.

Courtesy of Samuel Bickett

The magistrate concluded that, on the basis of the evidence, “I am satisfied beyond a reasonable doubt that [the police officer] was acting in the performance of his duty. As for Bickett, the magistrate wrote, his actions were “a serious threat to public order”.

And that’s one of the questions here: who, or what, defines a threat to public order. During the 2019 protests, videos and testimony documented Hong Kong police using aggressive tactics against protesters, some of whom broke their own rules. This, coupled with the government’s decision to call the protesters “rioters” and arrest some for rioting, generated more fury against the authorities and led to calls for an independent investigation into the brutality. But the Hong Kong government has largely defended police tactics during protests, including things like officers posing as protesters. Efforts to review or hold the force accountable have failed. According to the South China Morning Post, more than 10,000 people were arrested in connection with the 2019 pro-democracy protests, and hundreds were sentenced. No police officer accused of using excessive force were among them.

Bickett wasn’t a protester, just a guy who was doing holiday shopping with a friend. But the case has resonated as it may have been less of an isolated incident and more of a glimpse of a police force capable of operating with impunity. “It appears to be another typical case where the court tried to act impartially, but which is in fact partially in favor of law enforcement,” Lai said.

Bickett sees this deference as a sign of institutional erosion. “You cannot have the rule of law when you selectively prosecute only part of the population while signaling to another part of the population that they are above the law. “

Rule of law collapses in Hong Kong, enough to undermine it entirely

This question – which is above the law – is not unique to Hong Kong. This debate also takes place in places like the United States, especially in cases involving police officers.

But Bickett’s case and appeal came alongside Beijing’s campaign to undermine Hong Kong’s autonomy and freedoms. A man shouting independence slogans is convicted of “inciting secession”. The former CEO of Apple Daily, a now-closed media company, has been denied bail, in part because the US government and other governments have spoken out against his arrest. A university attempted to remove a statue commemorating the Tiananmen Square massacre.

“If we can say this very honestly, Hong Kong is becoming just another city of China,” said Dongsheng Zang, a Chinese law expert and professor at the University of Washington Law School. And in China, the rule of law is largely decided by the Chinese Communist Party.

“My feeling is that [Hong Kong’s rule of law is] on life support – but the prognosis is not very good, ”said Martin Flaherty, professor of international law at Fordham University. Part of the reason, he said, is that all the pitfalls of the Hong Kong system – based on the British model – are still there. Judges write decisions. There are calls like Bickett’s. It shows how grim and subtle the erosion of the rule of law is; it is not possible to identify the breaking point with any clarity.

Bickett’s case will be one of many testing points along the way, but it also might not offer a clear conclusion. If he is sent back to prison, is it because the judge hearing his case fully believed he was wrong? Or because he embarrassed the police? If he is exonerated, it may be a last breath for the Hong Kong justice system. Or maybe there are cynical reasons: Bickett was outspoken and he’s American; maybe it’s not worth sending him back to jail.

The fact that Bickett is American is another reason this case stands out. So far, China has tried to have it both ways: quelling dissent but still trying to preserve Hong Kong as a hub for international affairs. Hong Kong gained this status in part because of the rule of law – if you have a trade dispute, you should know that the courts will be a fair go-between – and because its relative freedoms have made it a cosmopolitan and vibrant city.

A part is still in place. But Flaherty said Bickett’s case was love at first sight – China still wants your business, but not if it comes at the cost of defying the government. “All of you foreign businessmen and lawyers, if you keep your nose on the ground and make money just do contracts, go out to expat bars and get drunk and don’t bother anyone, everything will be fine, ”he said. noted. “But the minute you get close to something that is political – which would involve standing up to the police – you’re going to be in trouble. “

“And the fact that you are a foreigner is not going to help you,” Flaherty added.

Bickett, as a lawyer, built his career on faith in the law. He is not optimistic about the outcome of his appeal. “The fact that I can’t really control whether I’m going to end up in jail or not, or what will happen to me in court, made me accept that the most important thing for me is to make sure that it matters, ”Bickett said. “If I have to go through this, I don’t want to do it in silence. “

Bickett wants this ordeal to count for something. Many Hong Kong people do not have this option, or the privilege to do so. As an American in Hong Kong, Bickett has the option of leaving. Although, the way he sees it now, it might end up being his only choice. “It’s just not sure, on the one hand,” Bickett said. “And then, for another, I’m a lawyer, right?” What is a lawyer going to do in a place where no one cares about the law? “

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