We on Wong’s legal team felt that breaching the rights of Hong Kong’s student leaders was an attempt to leave the protests rudderless
‘If local law, the Basic Law and the bill of rights in Hong Kong are breached, further writs of habeas corpus are inevitable.’ Photograph: Tyrone Siu/Reuters
Friday 3 October 2014 18.06 EST
Last weekend, as part of a legal team put together by a solicitor, I was retained with two other barristers to consult with and advise the young leader of Hong Kong’s Scholarism movement, Joshua Wong. He was under arrest for allegedly entering government property without authorisation, disorderly conduct and unlawful assembly.
The Hong Kong police force proved to be uncooperative and obstructive when we requested information about our client’s place of detention, and when we tried to get access to him in order to provide legal assistance if he requested it. Senior officers’ telephones remained unanswered throughout the night and morning of Friday and Saturday. We could gain no indication of whether Joshua would be charged and if so, when.
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Under Hong Kong law the police have 48 hours within which to charge an arrested person, take him before a magistrate for directions if he has not been charged, or release him on police bail. With only five hours left before that time expired – and without any of the three options having been taken – the legal team resorted to one of the oldest entrenched remedies available under the Common or British Law: the writ of habeas corpus.
This writ requires the imprisoning authority to justify the detention to a high court justice. Our application, which was strongly resisted by a senior officer of the Hong Kong Director of Public Prosecutions, was heard at 4pm last Sunday and succeeded both quickly and decisively.
The judge also indicated that two other detained students should be released, and they were, about one hour later. We had foreshadowed that we would take further immediate habeas corpus applications for the other two were that not the case.
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This result was the culmination of a good deal of work by the lawyers concerned. I was satisfied to see a tried and tested legal system, one of the oldest known to man, overcome the political and emotional currents stirred up by the protests.
The attitude of the People’s Republic of China (PRC) towards social disruption puts the “good of the society” first, whereas in Hong Kong’s legal system, both legislation and Common Law enshrine the importance of individual freedoms. The Scholarism and Occupy Central movements’ mass protests will thus continue to bring deeper questions about the rule of law to the forefront of Hong Kong’s consciousness.
When Hong Kong was turned over to the PRC in 1997, the handover incorporated a bill of rights ordinance and a “mini-constitution” called the Basic Law. The latter was designed to provide certain guarantees to citizens of Hong Kong and to regulate the relationship with the mainland. The right of appeal to Britain’s privy council was replaced by the domestic court of final appeal, with a power retained to refer vexing issues to the PRC for a ruling or determination.
The protesters have threatened to step up their campaign and to occupy government buildings if Hong Kong’s chief executive does not step down. Beijing sees these matters through the prism of the 1989 “Tiananmen Incident”, as it is now known in the PRC and parts of Hong Kong. The parallels between Hong Kong in 2014 and Tiananmen in 1989 are chilling and the rule of law in Hong Kong is being carefully reviewed.
Put simply and concisely, public meetings in Hong Kong of more than 50 must be authorised by the Hong Kong administration. The offences commonly known as disorderly conduct in a public place, unlawful assembly, offences concerning the assaulting, obstructing and disobeying of a police officer acting in the lawful course of his duty are all retained in Hong Kong legislation, and all carry both pecuniary and prison sentence penalties.
We always felt that the rights of the three young protest leaders were breached because the police were trying to get them off the street, leaving the students headless and rudderless as 1 October drew closer. But they are protected under the Basic Law byArticle 28:
The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.
If local law, the Basic Law and the bill of rights in Hong Kong are breached, further writs of habeas corpus are inevitable. The Hong Kong legal code will not be altered by these events. The Basic Law will not be renegotiated, because the handover has been complete for the last 14 years. The presence of these legal instruments will cause difficulties with Beijing if the Hong Kong administration loses control of the domestic situation because of unrest.
http://www.theguardian.com/commentisfree/2014/oct/03/hong-kongs-respect-for-individual-rights-allowed-us-to-free-joshua-wong
