Jailing of Hong Kong democracy activists a failure to uphold international law
Jared Genser says the decision to seek tougher sentences for three Occupy Central activists shows Hong Kong’s laws and prosecutors in a bad light. The government must respect its obligations to fundamental rights and release all political prisoners
Jailing of Hong Kong Occupy trio a ‘serious threat’ to city’s rule of law, top foreign lawyers say in joint letter
In response, I joined a group of human rights and democracy activists in writing an open letter condemning this decision as a “serious threat to the rule of law” in Hong Kong, released on October 16.
The government was quick to respond, claiming that we misunderstood the situation. A spokesperson for the Department of Justice said our letter was “unjustified”, alleging that the “judiciary remains truly independent and has displayed very high quality in their discharge of professional duties”. Their statement was swiftly parroted by Chief Executive Carrie Lam Cheng Yuet-ngor.
With all due respect, I strongly disagree. In the spirit of peaceful protest and debate, these are the primary objections voiced by the international community.
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First, the law under which the democracy activists were charged – the Public Order Ordinance – is overly vague, enabling the sweeping use of politically motivated charges. For example, there is no definition provided for what is meant by the prohibition on behaving in a “noisy or disorderly manner” or on using “threatening, abusive, or insulting words”. The UN Human Rights Committee has openly criticised the law for “facilitat[ing] excessive restriction” to basic rights, including the right to freedom of assembly guaranteed by the International Covenant on Civil and Political Rights.
Second, that the prosecutors chose to appeal against the prior sentences was a blatant abuse of their discretion. The activists had already served their punishments. That prosecutors were given a second chance to obtain additional and stronger punishments flies in the face of basic principles of due process of law.
Third, the appeal was a brazen attempt by the government to intimidate other peaceful would-be protesters. Substituting himself for a domestic fact-finder, Court of Appeals vice-president Wally Yeung Chun-kuen claimed that the increased sentences were a necessary deterrent because, “[If one] uses the guise of exercising freedom of assembly, but is in actual fact destroying public order and peace, [this] will plunge society into chaos.” Yet there wasn’t even a scintilla of evidence to support this claim. Not only were the 2014 protests overwhelmingly peaceful, but there have been no serious incidents of violence since.
I do appreciate the responses of the government of Hong Kong to our letter. While the punishment of democracy activists is unjust and indefensible, I welcome the opportunity to engage in a meaningful exchange of views. But what would be more welcome is a Hong Kong that respects its obligations under international law, releases all political prisoners and respects fundamental rights. If they commit to not barring me from entry too, I’d welcome the opportunity to come and meet Hong Kong authorities personally to discuss my concerns.
Jared Genser is founder of Freedom Now and served as pro bono counsel to Nobel Peace Prize Laureates Aung San Suu Kyi and Liu Xiaobo