Benedict Rogers: Real-life Alice in Wonderland: sentence first, verdict afterwards

Authoritarians either make absurd laws or misuse laws in absurd ways. ‘Twas ever thus and is becoming crystal clear once again in Hong Kong right now.

Earlier this week, the Hong Kong Police Force charged Chan Tsz-wah under the National Security Law with “conspiracy to collude with a foreign country or with external elements to endanger national security” and “conspiracy to assist offender” in relation to helping the twelve Hong Kong youths who are currently detained in Shenzhen. If convicted, he could be jailed for at least ten years and potentially life.

Mr Chan, a 29-year-old legal assistant, holds British citizenship, but because the Chinese Communist Party regime – and its puppet Carrie Lam – refuses to recognize dual nationality, he cannot receive consular protection.

The absurd charges against Chan Tsz-wah demonstrate the extent to which the Hong Kong authorities unchallenged are able to fashion the National Security Law in an arbitrary manner -to fit any imagined threat.

Even more ridiculous is the arrest of Jimmy Lai – in prison. Mr Lai is already in jail awaiting trial on other charges, and last week was denied bail by the Court of Final Appeal on the grounds that it was beyond its capabilities to assess the National Security Law’s compliance with the human rights safeguards laid out in the Basic Law or the International Covenant on Civil and Political Rights. This was a legal watershed for Hong Kong which indicated that where there is a clash between the National Security Law and human rights protections to which Hong Kong has signed up in its own legislation and international obligations, the National Security Law prevails. But this week, like a scene out of Alice in Wonderland, more charges are being levied against him. For Jimmy Lai and other pro-democracy activists, it is clear that Beijing is intent on inflicting a draconian carousel of court appearances and lengthy jail sentences as it moves to further strangle dissent in Hong Kong.

The previous day, the trial of nine leading pro-democracy politicians, including the father of the democracy movement Martin Lee, fellow barrister Margaret Ng, veteran labor rights campaigner Lee Cheuk-yan and – once again – Mr Lai, began on charges of organizing and participating in an unauthorized assembly. In reality, what their trial means is that no one will ever be able legally to peacefully protest in Hong Kong again.

As if this ridiculous lawfare was not enough, it was also reported this week that legislation may be introduced to criminalize ‘insulting’ public officials. Such a law would be ludicrous, especially if – as is likely – it is as poorly defined as the National Security Law and the prohibition on ‘insulting’ China’s national anthem. Presumably any criticism, however well-founded, justified and factual, could be out of bounds, further silencing any semblance of public debate. If I say that Carrie Lam, Teresa Cheng and others are idiotic and morally bankrupt, I could be committing a crime. But perhaps one no longer needs to say these things because everyone knows it anyway.

Seriously though, I have seen in other countries how laws banning ‘insult’ are so dangerous. In Myanmar, a Buddhist poet and pro-democracy activist Htin Lin Oo was jailed, in 2015, for criticizing extremist Buddhist monks who incited hatred and violence against Muslims. He said – as a Buddhist – that inciting violence was against the teachings of Buddhism: and he was then charged with insulting Buddhism. In Indonesia, the governor of Jakarta, Basuki Tjahaja Purnama – known as ‘Ahok’ – saw his re-election campaign derailed in 2017 and ended up in jail for two years when his political opponents accused him of blasphemy. And in Pakistan, almost exactly ten years ago, one of my very good friends, Shahbaz Bhatti, who served as the country’s Minister for Minorities Affairs, was assassinated in broad daylight for daring to reform the notorious blasphemy laws which have put so many lives in danger. Laws that criminalize insults do not just kill free speech, they kill life itself.

Of course no one should gratuitously insult others. It is better to rely on force of argument than scorn. And there are legal boundaries that exist in any free society – libel, defamation, incitement to violence. But a broad-brush law to protect public officials from criticism or even caricature only serves to confirm what we already know: that those who advocate such laws are insecure, astonishingly thin-skinned, prickly and unable to cope with disagreement.

In Myanmar right now we are seeing a similar phenomenon. General Min Aung Hlaing, who led the military coup at the start of this month, is tightening up restrictions on the Internet, threatening protesters not only with brutal violence but up to 20 years in prison, and has laid absurd charges against democracy leader and former de facto head of government Aung San Suu Kyi.

Indeed, it is odd that, while he alleges voter fraud in last November’s elections – a totally unsubstantiated claim – he has not charged her with this, but instead with illegal possession of walkie-talkies and violations of the national disaster law by campaigning in those elections. If the consequences were not so serious, it would be comical. If she breached the law by electioneering during the Covid-19 pandemic, surely the military-backed party and all other parties did too? And as head of government, it would surely have been criminally negligent if her security team did not possess communications equipment. And if the charge of voter fraud is to carry weight, why not substantiate that claim in a legal charge? The answer: because he can’t, so he’s clutching at spurious straws.

On top of all this, we have Hong Kong’s school curricula reforms, designed to educate the city’s children in the National Security Law. Children as young as six will learn about the National Security Law crimes and schools will be instructed to inform on students who chant political slogans. National Security will run through the entire curricula. Biology classes will learn about the ‘great success’ of the Chinese government’s response to Covid-19, while geography classes will affirm China’s claims in the South China Sea. To be honest, six year olds should be writing the law, not learning about it – they would certainly do a much more sensible job.

Trying to get one’s head around this profoundly dangerous weaponization of the law by regimes that have no legitimacy whatsoever takes one back to Alice in Wonderland. In the Trial of Alice, there’s the famous moment where the Queen demands the sentence. Plucky Alice gently suggests that there should be a verdict first – to which the Queen roars: “Sentence first, verdict afterwards.” That’s the direction Hong Kong and Myanmar are headed, just like every other authoritarian state – along with the March Hare, the Mad Hatter and the Cheshire Cat, and the Queen’s cries of “off with their head”. Only in Hong Kong, China, Myanmar and other repressive states it’s not fiction, and it’s not funny, it’s real-life tragedy.

Benedict Rogers is co-founder and Chief Executive of Hong Kong Watch. This article was published in Apple Daily on 19 February 2021. (Photo: Apple Daily)