In the eyes of totalitarian governments, the rule of law simply means “rule by law”. With unchecked power, totalitarian governments can enact whatever laws it likes or needs without taking into account the human rights and moral standards of modern society (such as the International Covenant on Civil and Political Rights). Without a judicial review system, judges simply follow the orders of their totalitarian government and hand down judgements in accordance with government instructions or what the government wants. People’s complying with those laws and submitting themselves to said judgments are the meaning of the rule of law in the eyes of totalitarian governments.

Hong Kong is supposed to be a place that has the rule of law under the common law system. Powers have to be checked and balanced. Therefore, there has to be an elected legislative body and a judiciary independent of the government and legislature. People have the right to challenge laws that are unjust or violate international human rights standards. All this is common sense in Hong Kong, and the people drafting the Basic Law attempted to establish such a framework.

However, after more than 23 years of implementing that framework, the situation in Hong Kong has deteriorated rapidly following the enactment of the national security law and with Beijing achieving its “overall jurisdiction” over the Asian financial hub. Today, we are seeing more and more unjust and extremely conservative court rulings. Defendants are denied bail and have to be detained for a long period of time before their trials. Protesters are given heavy sentences while police officers who broke the law can get away with light punishments. Legitimate and reasonable private prosecutions get thrown out. All this makes one wonder if the rule of law in Hong Kong is being destroyed by a totalitarian regime.

People in the legal profession in general do not believe the central government or the Hong Kong government will take the initiative to educate or instruct Hong Kong judges what rulings to lay down in court cases. I don’t think that is possible either. But then it does not take a totalitarian government that excels in inciting people’s emotions to subdue the disobedient legal sector in Hong Kong. I believe the following will happen in the national security law era.

First, judges are human beings like the rest of us, and the government is keenly aware of that. When handling controversial cases today, how many judges dare to lay down a ruling that goes against what the central government wants? Doing so will subject a judge to Cultural Revolution-style criticism from the pro-Beijing media, leftist scholars, the Legislative Affairs Commission of the National People’s Congress (NPC), and the pro-establishment camp in Hong Kong. Many people in the legal profession now believe the career of judge Alex Lee Wan-tang, who granted bail to Jimmy Lai on extremely harsh conditions, is over. That should be something imprinted in the mind of every judge in Hong Kong. If being “open-minded” only leads to bleak career prospects, being “conservative” means job security and that one can keep climbing the career ladder. This surely is one of the key strategies of the totalitarian governments to influence judges.

Second, because the NPC has the supreme power to interpret the Basic Law, judges may think that instead of issuing a judgment that is not to the NPC’s liking, causing it to be overturned later, they had better look at things from the perspective of the NPC to avoid any need of interpretation of the Basic Law. Many judges now actually take such a view. They try to avoid any scenario where their rulings have to be overturned through interpretation of the Basic Law, with a view to minimizing any damage to the rule of law.

Third, most judges appointed in recent years are conservative. It is simply impossible for people like Edward Chan King-sang and Denis Chang to be appointed as judges. In the future, the central government will have a firm grip on the appointment of every judge and magistrate. Anyone whose political position is slightly yellow will be turned away. It is impossible for Hong Kong to have a balanced court like the US Supreme Court. Courts at all levels will only be more and more conservative.

Fourth, the Hong Kong Bar Association is a thorn in the flesh of the totalitarian government. How will it be sorted out by the regime? Of late, the pro-Beijing media pointed out that only Hong Kong, the UK and a very small number of countries in the world follow a legal system which have barristers and solicitors as two different types of lawyers, whereas most countries using the common law system combine the two into one. If barristers and solicitors become one category, the Bar Association, which often criticizes the central government, is likely to be merged with the Law Society of Hong Kong, which has a large number of lawyers. That would dilute or even eliminate the impact of the Bar Association outside the legal sector.

As for solicitors, the central government has in recent years cultivated many young and senior lawyers and law firm partners handling IPOs, mergers and acquisitions, project financing and bonds issuance. Many of them are “new Hongkongers” whose mother tongue is Putonghua. Over time, they will play an important role in the Law Society. They will be important pawns of the central government in the latter’s bid to turn around the anti-China position of the Hong Kong legal sector. The central government will probably make an effort to make sure big law firms will get more work only if they hire more of these overseas-educated “new Hongkongers”. Homegrown Hong Kong lawyers who are yellow ribbons will be replaced.

Lastly, in the eyes of many local lawyers, especially the younger ones, their pro-Beijing counterparts such as Priscilla Leung Mei-fun, Horace Cheung Kwok-kwan and Holden Chow Ho-ding are merely “loyal rubbish” who will not object even if the central government says the sun rises in the west. In the decade to come, the central government will probably cultivate a new generation of pro-Beijing lawyers by handpicking young overseas-educated lawyers who are professionally competent, affable, ostensibly open-minded and seemingly neutral. It will try to befriend this new generation of lawyers so as to win their hearts.

(Lut Shu, a practising lawyer in Hong Kong)

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