The Protests in Hong Kong and the Value of a Jury of Peers

June 25, 2019 Updated: June 25, 2019

Commentary

The people of Hong Kong just obtained a temporary reprieve from Beijing’s assault on their autonomy. The issue of the day was a controversial extradition bill that would require certain defendants to be sent to mainland China for trial. The people of Hong Kong fought hard against it.

In doing so, they reminded us about the value of the right to a jury of one’s peers.

The case that spawned the events involved a 19-year-old man from Hong Kong who traveled to Taiwan with his 20-year-old girlfriend. She never returned. He later told Hong Kong police that he had strangled her, stuffed her body in a suitcase, and hid it in bushes in a field near a subway station in northern Taipei.

Because the alleged/confessed crime took place in Taiwan, the boyfriend would have to be brought back there to face trial. The problem was that the governments didn’t have an applicable extradition agreement. The pro-Beijing leadership in Hong Kong decided to go beyond resolving the issue in that case, introducing legislation that would allow the transfer of criminal suspects to Taiwan and other territories with which it lacked an extradition treaty—including mainland China.

Residents of Hong Kong recognized this as a serious threat to their liberties. Protesters numbering probably about 2 million—out of about 7 million residents of the city—repeatedly took to the streets protesting this assault on their freedoms. They returned even after the immediate concern seemed to have passed.

The right to a trial by a jury of one’s peers was enormously important to the American Revolution. Prior to the revolution, some colonists were sent to England to stand trial. They couldn’t bring their witnesses there to testify, and the trial could be delayed for extended periods. According to the Colonial Williamsburg Journal, a 1774 letter, probably drafted by John Jay, argued to the people of Great Britain and Ireland that Parliament was “depriving the american Subjects of the invaluable Trial by Jury” and taking colonists “in chains 3000 miles from their native country without evidence or Assistance of friends to be tried by a Jury of strangers.”

The influential Virginia Declaration of Rights was written by George Mason and adopted in Williamsburg on June 12, 1776. Among its 16 clauses was one that said, “That in all capital or criminal prosecutions a man has a right … to a speedy trial by an impartial jury of twelve men of his vicinage.”

The Declaration of Independence, dated the following month, contained a list of grievances against the King of England, which were cited to justify severing America’s bonds with Great Britain. Among them were offenses against justice such as “depriving us, in many cases, of the benefit of Trial by Jury” and “transporting us beyond Seas to be tried for pretended offences.”

The British didn’t willingly accede to the colonists’ claims. In 1777, Parliament enacted new laws “with regard to the troubles in America.” Among the professed purposes of the legislation was “to detain in England for trial those who shall commit high treason in America.” The laws deprived the accused of any real benefit from a trial by jury.

Commenting on the treatment of the colonists, parliamentarian Edmund Burke wrote, “A person is brought hither in the dungeon of a ship’s hold; thence he is vomited into a dungeon on land, loaded with irons, unfurnished with money, unsupported by friends, three thousand miles from all means of calling upon or confronting evidence, where no one local circumstance that tends to detect perjury can possibly be judged of;—such a person may be executed according to form, but he can never be tried according to justice.”

As the American Civil Liberties Union (ACLU) noted in a briefing on freedom of expression, the importance of the right to a jury of peers for the colonists (and for today’s residents of Hong Kong) can be seen in a colonial trial that took place in 1735. The colonists were not permitted to express opposition to their British overlords.

“The English common law doctrine of ‘seditious libel’ had been incorporated into the law of the American colonies. That doctrine permitted prosecution for ‘false, scandalous and malicious writing’ that had ‘the intent to defame or to bring into contempt or disrepute’ a private party or the government. Moreover, the law did not even accommodate the truth as a defense,” the ACLU wrote.

“The colonies’ most celebrated seditious libel prosecution was that of John Peter Zenger,” the ACLU noted. He was the publisher of the New York Weekly Journal, which had “printed a series of scathing criticisms of New York’s colonial governor,” William Cosby.

The law was quite clear; Zenger was guilty. A jury of colonists, however, found him not guilty. In doing that, the jury nullified the law, voiced contempt for British rule, and expressed “support for a free and unfettered press,” the ACLU wrote.

“After Zenger’s acquittal, the British authorities abandoned seditious libel prosecutions in the colonies, having concluded that such prosecutions were no longer an effective tool of repression.” They certainly weren’t effective in the face of a jury of peers.

In light of the protests in Hong Kong, Carrie Lam, Hong Kong’s chief executive, shelved—but did not kill—the extradition bill. She even issued an apology. That didn’t stop protesters from returning to the streets the very next day.

This whole episode has been called a “devastating setback” for Lam but perhaps not for China and its leader, Xi Jinping, who would like to accelerate Hong Kong’s integration into the Chinese political system. (Its special semi-autonomous status is due to end in 2047.) The thought is that due to the suppression of expression and restrictions on communication, the unrest is unlikely to spread to mainland China.

That may be true for now, but one cannot help but see parallels between what is happening today and what took place in the American colonies. People know when their legal rights—such as the right to a jury of one’s peers—are threatened, and they can push back hard. That certainly is what happened in the 1700s. We may be seeing the start of a similar revolution today in Hong Kong.

Ronald J. Rychlak is the Jamie L. Whitten chair in law and government at the University of Mississippi. He is the author of several books, including “Hitler, the War, and the Pope,” “Disinformation” (co-authored with Ion Mihai Pacepa), and “The Persecution and Genocide of Christians in the Middle East” (co-edited with Jane Adolphe).

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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