The imprisonment of Jimmy Lai before trial, and the severe sentencing of the Demosisto trio Joshua Wong, Agnes Chow, and Ivan Lam have aroused local and international concern. The Department of Justice (DoJ) issued a statement accusing those who demanded the immediate release of the defendants as disrespect of the Hong Kong judicial system and disregard of the fact that the three had already pleaded guilty. The statement stated that Articles 63 and 85 of the Basic Law respectively stipulate that the DoJ “shall control criminal prosecutions, free from any interference,” and that the courts “shall exercise judicial power independently, free from any interference.” The statement also stated that, “it is unbecoming and irrational for people making sweeping attacks and baseless accusations against our judicial and legal systems without reference to the fact and circumstances of the case. Such statements, if made with a view to exert undue influence on our judicial and legal systems will be futile.”

It is indeed “futile.” That is because they are just words, not effective “interference.” The “freedom from any interference” in criminal prosecution and the courts, as referred to in the Basic Law, means freedom from effective interference by other authorities, not discussion, criticism or imputation in the context of freedom of speech because these do not fall within the scope of “interference.” If criticism is also “interference,” then the Basic Law should not provide Hong Kong residents with freedom of speech, nor should it specifically propose in Article 39 the implementation of two human rights covenants in Hong Kong, and that no law enacted in Hong Kong should override the human rights covenants.

The three former leading members of the now-disbanded Demosisto are charged with “unauthorized assembly” during last year’s mass protests. Eric Cheung, the principal lecturer at the Faculty of Law of the University of Hong Kong, believes that unauthorized assembly is not the same as unlawful assembly. Unlawful assembly involves disorderly conduct and may lead to violence; whereas unauthorized assembly does not have this behavioral element, but merely failed to apply for a notice of no objection, and is basically peaceful in nature. In practice, the Basic Law places no conditions on prior approval of the right to freedom of assembly. For this reason, the court will usually impose a light sentence. The trio pleaded guilty to the charges largely based on this perception that they expected a lenient sentence. The judge, however, deviated from the original charges and used other more serious crimes, such as unlawful assembly and rioting, that were not charged, stating that the defendants were “threatening the personal safety of members of the public...penalties with deterrence are necessary.” Eric Cheung believes the defendants are made accountable for other charges.

Jimmy Lai and others are accused of allegedly defrauding the Hong Kong Science and Technology Parks Corporation by breaching land-lease terms. This kind of leasing dispute can be said to be a common case in Hong Kong, but this time the National Security Department is in charge of the trial before a judge designated by the National Security Law. When the case was adjourned to next year without a plea, Jimmy Lai was denied bail and sentenced to several months in jail before trial.

Do these two cases violate the principle of “free from any interference” under Articles 63 and 85 of the Basic Law? A discussion is only necessary if you deem the readers are fools.

It is true that criticism, as the DoJ said, is “futile,” while interference with real power is certainly productive and not a waste of efforts. In that case, why is freedom of speech necessary in a civilized society?

After the third president and Founding Father of the U.S. Thomas Jefferson drafted the Constitution, which codified the separation of powers, he discovered that this constitution still had a fatal flaw. Although the power of the state has been divided into legislative, judicial, and executive powers, all three can be controlled by officials or politicians. If the vast majority of people do not have any direct power that they can manipulate, they will end up with nothing. With this in mind, Jefferson pushed for the First Amendment to the U.S. Constitution, which prohibits the Congress from passing any laws that denied freedom of religion, freedom of speech, or freedom of assembly. The same logic applies to Article 39 of the Hong Kong Basic Law, which prohibits the passage of any provision that conflicts with the two human rights covenants.

Jefferson believed that the people should be allowed to “hear everything true and false, and to form a correct judgment between them.” In free debate, mistakes are inevitable. There should be room for error if there is freedom of speech. If speech must be consistent with the facts, it is likely to frighten away the people who wanted to speak.

However, this can only be realized in a system that maximizes the rights of the people. Moreover, in a democracy, speech may be futile for a while, but sooner or later, it will show its corrective function. When we return to a system that maximizes the power of the ruler, the separation of powers will no longer exist, and the era when everyone is too scared to speak out will come.

(Lee Yee, a prominent political commentator in Hong Kong who embarked on a career of writing and subediting in 1956, has been contributing unremittingly political commentaries to the local press.)

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