By Leo Lan
When the 12 Hong Kong activists decided to cross the strait from Hong Kong to Taiwan, they may have understood the potential risks, including being caught by mainland Chinese, Hong Kong or Taiwan marine police, or a possible accident at sea.
Yet, the 12 and their family members might not have been prepared for the treacherous and byzantine criminal justice system, into which they have disappeared after they were intercepted at sea by the mainland Chinese coast guard. The arrests have crystallized the fear that people in Hong Kong have about the criminal justice system in the mainland which sparked the 2019 protests.
Many in Hong Kong watched in fear as mainland police stripped the 12 detained Hongkongers of their legal rights. The Hong Kong citizens were denied access to lawyers of their own choice and assigned government-appointed lawyers against their will.
In the mainland, deprivation of rights granted on paper is routine. Hongkongers have had a taste what persecuted mainland Chinese dissidents, rights defenders, Uyghurs, Tibetans and other members of ethnic minorities have had to face inside the mainland’s arbitrary and politically manipulated criminal justice system. However, they still have much to learn about how an authoritarian regime silences dissent and suppresses its opposition.
The farce made me reminiscent of a time when a Chinese dissident writer who once teased me for taking China’s laws and legal procedures too seriously. From his personal experience, it was a waste of time to talk about laws because the Chinese Communist Party does not respect the rule of law. To put it in his own words: “It’s doomed to be a failure if you want to argue with the Communist Party about laws, since the Party can always claim they have their own laws and their own ways of following them or not.”
No access to lawyers of one’s own choice and having government-appointed lawyers against one’s will violates the detainees’ rights to due process. Yet, these are routine practices in China’s criminal justice system, especially in politically sensitive cases. These abusive practices culminated in the “709 crackdown,” when over 300 human rights lawyers and activists were arrested and detained in July 2015.
While being held in secret locations, several detained “709” lawyers, including Wang Yu and Li Heping, presumably “fired” their lawyers, authorities told their families. Meanwhile, families and lawyers of their choosing were denied access to the detainees when they tried to confirm the authorities’ claims. Later, when some of the “709” lawyers were released, they revealed that authorities had coerced them to “fire” their own lawyers.
Government-appointed lawyers don’t act as independent legal aid counsel, but as agents of the government and serve its political interests. These officially-approved lawyers tend to keep families in the dark about any details of the cases, including the detainees’ health conditions. They effectively contribute to de facto secret detention, during which detainees in most cases are subjected to torture and other types of ill-treatment to extract information and forced confessions.
A more recent example is the case of human rights lawyer Yu Wensheng, who was tried in secret in May 2019 and sentenced in secret to four years imprisonment for “inciting subversion of state power” on June 17, 2020. His lawyers were only allowed to represent him after he had been convicted and sentenced. Their first and only meeting was in August 2020, almost 1,000 days after he was detained. Yu told the lawyers that he suffered from poor health and the government-appointed lawyers tried to force him to confess.
Hongkongers must have no illusions that their city’s semi-autonomous status, with its separate legal system, will spare them of such abuses of their due process rights.
For Uyghurs, Kazakhs and other ethnic minorities in Xinjiang Uyghur Autonomous Region, their fate is more alarming. Their overseas relatives don’t have any information about their situation in Xinjiang, including not knowing if they have access to lawyers or have been tortured. For many Uyghurs overseas, their relatives have simply vanished, likely into an internment camp.
For some overseas Uyghurs, they are concerned about their own safety, receiving death threats and facing abduction by Chinese agents if they continue to campaign for their relatives.
The Chinese government always maintains its narrative that China maintains the “rule of law” and protects human rights (with Chinese characteristics). However, there is no way the 12 Hongkongers can be given a fair trial and they are at risk of prolonged, arbitrary detention.
Their case should make Hongkongers realize the brutal reality that they will not enjoy any differential treatment from those in the mainland when they are detained in China. Ironically and sadly, it was this fear amongst many Hongkongers which triggered the anti-extradition bill protests last year.
Like it or not, it is important for Hongkongers to gain a deeper understanding about the human rights situation in China, as Hong Kong activists are now experiencing what mainland human rights defenders have been facing for years. These 12 Hong Kong activists might become the first of a long list of activists who had no choice but to risk their lives and flee to other countries.
For Western democratic countries, the need to accept a large number of asylum seekers from Hong Kong may not be a distant future. Some countries have followed the non-refoulement principles at international law and have not repatriated Uyghurs and Kazakhs due to the high risk of arbitrary detention and torture if they are sent back to China. They should do the same for asylum seekers from Hong Kong.
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