(Note: This article was first published by Hong Kong Free Press on April 16, 2022)
Everyone knows about politicians who promise the moon and political hopefuls with policy agendas that never materialize. Such lapses can have much greater consequences if they come from government leaders who are speaking from one political tradition and their listeners are thinking in terms of another.
Over time, the disconnect can grow if the two sides in such a mismatched exchange proceed each according to their own traditions, especially when those two traditions are Western-style democracy and Communist Party dictatorship. Eventually the result is either a collision or an implosion under the spent force of their own futility — or one finally succeeds in defeating the other.
This last has been Hong Kong’s fate after local politicians and activists and voters built their political community in accordance with what everyone thought were Beijing’s promises for Western-style democracy. These were about universal suffrage, autonomy, free political expression, judicial independence and all the rest that were supposed to follow the 1997 transition from British to Chinese rule. All were written down in a Basic Law, promulgated by Beijing in 1990, to serve as Hong Kong’s post-1997 constitution.
For Hong Kong, the end of those pursuits — as they were initially understood — was written down again, this time in the form of a National Security Law promulgated by Beijing on June 30, 2020. The law is being enforced by the new national security regime that has been constructed in its wake. This new order includes a wholesale revamp of the original Basic Law designs that were in line with all the original promises.
The new designs feature an election system that deliberately excludes what had become the preferred pro-democracy choice of a majority of voters. Accordingly, only pro-Beijing pro-establishment candidates are now allowed to participate in Hong Kong’s governing institutions at every level.
THE NATIONAL SECURIY DIVIDING LINE
Throughout the three decades between 1990 and 2020, Beijing made no attempt to reconcile the two Western and mainland Communist Party traditions, much less try to explain to the public, or even acknowledge the difference.
Eventually, since 2020, one has simply been superimposed upon the other. Thereafter, as if by magic, the two traditions merged in official discourse to become one and the same: not a genuine mix, but Beijing’s Communist Party mainland-style superimposed upon its Western equivalent.
The result, in name, is now the same as before, as if nothing has changed: one-country, two-systems, eventual universal suffrage elections for both Hong Kong’s Chief Executive and the Legislative Council, a high degree of autonomy for Hong Kong people ruling Hong Kong, and all the rest.
So that well-meaning friends of Beijing can in all sincerity ask: but it is still one-country, two-systems, democratic universal suffrage elections for all, right? They don’t know the difference, have never been told all that the two traditions entail, and want to give their leaders in Beijing the benefit of the doubt.
There are others, of course, who care little about the distinction and dismiss all that came before June 30, 2020, as disruption and disorder. They welcome the present tranquility that has been restored to Hong Kong governance — more or less identical to the order of pre-reform colonial days.
TAIWAN
This neat sleight of hand has also been given real-life application beyond Hong Kong. The sudden resurgence of international interest in the Taiwan issue has given Beijing another opportunity to state its claim. Analysts immediately noted the similarities between Russia’s invasion of neighboring Ukraine, citing long-standing historical ties, and Beijing’s long-standing insistence on national reunification. This will be imposed by force, if the break-away island province of Taiwan refuses indefinitely to return to its rightful place within the Chinese national order. (( a ))
Beijing’s determination in this respect has continued since 1949, when the last remnants of Nationalist China’s anti-communist forces retreated across the Taiwan Strait. Today Taiwan has a popularly elected government, and the general public seems to have little interest in returning to the embrace of the Motherland — especially if it remains under Communist Party rule.
Yet Beijing will not let the matter rest and pursues the cause of national reunification at every opportunity. But strangely enough, the terms have not changed since 1979 when the current offer to Taiwan was first made. Beijing proposes reunification under the same “one-country, two-systems” formula granted to Hong Kong after 1997.
This is despite the drastic redesign that has been imposed on the Hong Kong system since 2020. Nor has Beijing acknowledged the real-life political consequences of the changes that have been imposed during the past two years — except to assert that peace and good order have now been restored to Hong Kong governance where only “patriots” are allowed representation.
So, what is it that Beijing is offering Taiwan? Which one-country, two-systems model is Beijing proposing? Is it the seemingly open-ended version that served as the basis of the Hong Kong democracy movement’s campaigns for “genuine” universal suffrage elections before June 30, 2020, when the National Security Law was imposed? Does that mean it also comes with the same bait-and-switch routine that Hong Kongers wasted 30 years trying to master before the switch?
Or is Beijing now offering Taiwan something more akin to the revamped version that has been imposed since June 30, 2020? Beijing has yet to offer even a hint of explanation, behaving instead as though events since June 2020 never happened and everything in Hong Kong remains the same as before.
Or is Beijing planning some new variation for Taiwan? And will it ever be disclosed? Or will Taiwan have to learn-by-doing as Hong Kong did? But the distinctions between pre- and post- June 30, 2020, are too great and have been too well documented to be dismissed by some allegation about “fake-news” reporting.
REDEFINING JUDICIAL INDEPENDENCE AS WELL?
For Hong Kong, of the original 1997 pledges all that had remained essentially undisturbed is the tradition of judicial independence. This continues to be proclaimed by its practitioners at every opportunity, despite the challenges presented by Hong Kong’s new national security regime. But now this claim has just received an unexpected blow from no less an authority than the British government in London.
The British government made the unexpected announcement in late March, saying it no longer wished to continue the practice that allowed serving British judges to act concurrently as members of Hong Kong’s Court of Final Appeal. The two incumbents, Lord Robert Reed and Lord Patrick Hodge, submitted their resignations with immediate effect. They are, respectively, president and vice-president of Britain’s Supreme Court.
According to the British government’s announcement, there had been a “systematic erosion of liberty and democracy in Hong Kong” since the imposition of the National Security Law. The statement cited the Hong Kong government’s subsequent targeting of free speech, the press, and freedom of association and said the post-1997 arrangement now ran the risk of putting British judges in the position of “legitimizing oppression.” (( b ))
Six other British judges also sit on the court but are retired and have the option of resigning or not as they choose. To date, none have done so nor have judges from other common law jurisdictions. Besides Britain, non-local judges, primarily from Canada and Australia, have also been sitting on the appeal court bench since 1997.
Beijing only allowed this foreign judge arrangement after much pre-1997 debate. The concession was intended to serve as a safeguard against what everyone feared most, namely, the eventual mainland-ization of Hong Kong’s judicial system.
Before 1997, the Privy Council in London served as Hong Kong’s final appeals court, an arrangement that Beijing would not allow post-1997. Since then, a panel of foreign judges has been maintained. Individual members from the panel are called upon to hear cases that come before Hong Kong’s Court of Final Appeal, usually at the rate of one foreign judge per case in the company of a local judge majority.
British Foreign Secretary Liz Truss, in a personal statement, wrote that Britain had originally been satisfied with the pre-1997 assurances of Chinese leaders, namely, that Kong Kongers post-1997 would continue to enjoy ‘rights and freedoms according to law.’
But she noted that since 2020, the situation had changed. “We are seeing the chilling consequences as national security law cases proceed through the courts. Dissent is being criminalized with pro-democracy activists jailed and opposition voices stifled … As a result, there is no meaningful opposition left in the legislature, as demonstrated by the 2021 Legislative Council election.” (( c ))
The cases that weighed in the British government’s decision included the prosecution of Apple Daily’s Jimmy Lai and the closure of all his media outlets, as well as the “primary elections” case.
The latter entailed the arrest of all the candidates who had participated in an informal straw poll organized by pro-democracy candidates. The aim was to winnow the field and minimize factional infighting, in preparation for the coming Legislative Council election. It had originally been scheduled for September 2020. The exercise had long been planned and was scheduled for early July 2020. As it happened, the poll was held just days after the National Security Law was promulgated.
The group was rounded up in early January 2021, in melodramatic well publicized dawn raids designed to have a maximum impact on the local community. The suspects were initially granted bail but subsequently charged with national security crimes, allegedly for plotting to subvert state power via their straw poll exercise. The initial arrests numbered 47 in all, but a few others were added later. The number ultimately charged was 47.
A majority of those involved were then denied bail, in accordance with the strict new National Security Law rules in this respect. This group has remained in custody for a year, pending trials that have been repeatedly delayed – due to the complexities of the case, so many defendants, explain the authorities, so much documentation to prepare, plus Covid-19 concerns, and so on. If found guilty, the defendants can look forward to many more years behind bars.
Also reportedly weighing on the British government’s decision was the case of a former pro-democracy legislator, Fernando Cheung. He was arrested, tried, found guilty, and sentenced to three weeks imprisonment for disrupting Legislative Council proceedings on May 8, 2020.
His case ultimately reached Hong Kong’s Court of Final Appeal where the prison sentence was upheld. Lord Robert Reed was among the judges hearing the case and concurred with the majority decision. He might have written a dissenting opinion but did not. Nor did he trouble to explain further the reasons for his agreement with the court’s final judgement. (( d ))
Cheung’s behavior in the Legislative Council chamber was actually of the kind that a post-National Security Law decision from Beijing mandated for summary permanent dismissal from the Council without the possibility of appeal. The decision was issued by the National People’s Congress Standing Committee (NPCSC) on November 11, 2020. (( e ))
Thus, Cheung’s behavior in May 2020 pre-dated both the June National Security Law and the November NPCSC decision. And according to its Article 39, the new law is to apply to acts committed after its June 30, 2020 promulgation date. Yet the original HK court verdict and the Court of Final Appeal judgement seemingly reflected the sterner spirit of the new National Security Law and not the norms of its predecessor. According to the latter, legislators are supposed to be exempt from prosecution, under the rules of parliamentary privilege, for behavior inside the Legislative Council chamber.
In this case, however, the court ruled that the exemption applied only to words, not deeds, but did not distinguish between peaceful and non-peaceful deeds. Cheung had actually spent 44 minutes chanting slogans in a deliberate attempt to disrupt the proceedings. After three warnings from the chairperson, he was physically removed. The incident might have ended there, but Cheung was later arrested and charged with parliamentary contempt.
It was late spring 2020, the 2019 street protests had run their course, and pro-democracy legislators were running out of options via constant quorum calls and filibustering tactics in a futile attempt to exert their influence or make their presence felt in the Legislative Council.
But in this case, the courts were not asked to rule on whether Cheung’s disruption had been peaceful nr not. They ruled only on the issue of parliamentary contempt for disrupting the proceedings, which he had done, found him guilty, and sentenced him accordingly.
IN DEFENSE OF LEGAL INTEGRITY
After the announcement from London, Hong Kong’s legal authorities hastened to express their carefully phrased indignation that anyone should presume to question the integrity of Hong Kong’s judiciary. The political authorities were of course another matter. They did not try to provide cover for Beijing’s wrath over London’s decision.
The Hong Kong office of Beijing’s Foreign Affairs Ministry issued a statement calling the British government’s withdrawal of its judges a political ploy intended to denigrate Hong Kong’s National Security Law. Such legislation is standard international practice, noted the statement, and in Hong Kong had succeeded in restoring peace and stability under the rule of law.
Hong Kong Chief Executive Carrie Lam similarly objected to the allegations and rejected the British government’s suggestion that the issue had to do with the National Security Law or the exercise of free speech and political freedom, which Hong Kong continued to enjoy in full measure. Former Chief Executive Leung Chun-ying said London’s action was itself an intrusion and a clear violation of judicial independence. (( f ))
Secretary for Justice Teresa Cheng performed the sleight-of-hand maneuver. She insisted that nothing had changed. Everything remained the same for Hong Kong’s judiciary pre- and post-June 2020. She held that the smear campaign against the National Security Law had no basis in fact. Hong Kong’s Basic Law article 85, stipulates judicial independence free from any interference and guarantees immunity from legal action in the performance of judicial duties. The National Security Law does not affect these guarantees.
Under the new law, she said, it is true that Hong Kong’s Chief Executive appoints designated judges to hear national security cases, but the judiciary remains responsible for assigning each judge to a specific case. It is still the duty of the judiciary to adjudicate independently and impartially. She also cited the legal mechanisms that ensure impartiality of judges, transparency of trials, and the protection of defendants’ legitimate rights. (( g ))
Five of the six British judges remaining on the Court of Final Appeal roster indicated their willingness to stay on and even issued a statement contradicting the British government’s decision. They said they remain satisfied with the independence and integrity of the Court of Final Appeal. The sixth judge is in poor health. (( h ))
The Bar Association’s new chairman, Victor Dawes, wrote that despite the British government’s decision, Hong Kong’s judiciary “will continue to discharge its duties independently and professionally. Those charged with any criminal offenses will continue to enjoy the rights guaranteed under the laws of Hong Kong in proceedings presided over by our professional judges.” (( I ))
SAME RULES, NEW LAW
So, what is this judicial independence and integrity they are all declaring? Probably, it would make more sense, at least to the general public, if Hong Kong’s legal authorities spoke in terms of certain principles that are inherent in their profession but are rarely elaborated — principles like prosecutorial discretion and judicial deference to the governing authority responsible for making the laws they must administer.
In Hong Kong, the prosecution is not independent of government. Prosecution proceeds under the authority of the Secretary for Justice who is nominated by and works in turn under the authority of the Chief Executive. But neither individual can serve without Beijing’s prior substantive approval making them both essentially Beijing appointees.
Additionally, they now work under the authority of the new Committee for Safeguarding National Security that advises and guides on implementation of the new National Security Law. Members of this committee are: Hong Kong’s Chief Executive, Carrie Lam; the Chief Secretary who is number two in the Hong Kong government hierarchy; the Financial Secretary; the Secretary for Justice; the Secretary for Security; the Commissioner of Police; and the Deputy Commissioner of Police in charge of national security. The committee’s advisor is Luo Huining who heads Beijing’s representative Liaison Office here.
The Chief Executive now selects designated judges, and they alone can preside over national security cases. It does little good in terms of public confidence to say that which specific judge is assigned to which specific case is the responsibility of the judiciary, not the Secretary for Justice. Hong Kong’s judiciary cannot work independently of the new national security apparatus that has been created for the purpose of implementing the new National Security Law.
Equally important in assessing judicial independence is the principle of judicial deference or more specifically, the judiciary’s responsibility to adjudicate in accordance with the law. Hong Kong now has a new law designed for national security cases. Designated judges have no choice: either they work within the confines of this new law or resign.
In fact, Hong Kong’s Director of Public Prosecutions David Leung did just that soon after the promulgation of the National Security Law. (( J )) So did an Australian judge who was a member of the non-local judges on the Court of Final Appeal’s roster.
And now, inevitably, the spirit of the new law is migrating, moving slowly but surely to influence other laws. Chief Justice Andrew Cheung has recently acknowledged, in a Court of Final Appeal ruling, that the new stringent National Security Law’s bail conditions are being followed in other non-national security cases that nevertheless have national security implications. The December 2021 ruling from Hong Kong’s Court of Final Appeal held that the National Security Law should work in conjunction with other Hong Kong laws, the aim being to seek ‘convergence, compatibility and complementarity.’ (( K ))
Fernando Cheung might have been tried and found guilty under the old rules that also regard a disruption of parliamentary proceedings as a violation of the parliamentary privilege rules. But the court was not asked to judge whether his disruption was peaceful or violent. In this case the disruption was non-violent. But Cheung was given a prison sentence anyway.
The new norms for parliamentary behavior were decreed by Beijing in its November 2020 decision. Whatever the letter of the law may be, the Court of Final Appeal judges and Lord Reed deferred to the spirit of Hong Kong’s new national security environment not that of its predecessor.
The new order’s most exuberant champion is British barrister Grenville Cross who was Deputy Director of Public Prosecutions, before 1997 and became Hong Kong’s first post-1997 director of the same office serving for 12 years from 1997 to 2009. In media interviews and his regular China Daily columns he comes across as the sort of legal authority who never encountered a social altercation he couldn’t find a way to prosecute.
But he is more honest than others because he embraces the new National Security Law without reservation, which few seem willing to do at least not in public. He sees the new law as a source of authority for the new legal norms and says the National Security Law was necessary to end disruption and disorder. Hong Kong has thus been put back on the right track, a track that will not only restore peace and tranquility but allow the former colony to take its rightful place within the Chinese national order, which would not have been possible before.
Cross even says that Hong Kongers have nothing to fear from the National Security Law because it contains guarantees that are embedded in human rights law. For example, Article 4 of the new law says that all the rights and freedoms guaranteed by Hong Kong’s Basic Law are to be protected.
In any event, Hong Kong now has a new law. Judges are bound by the oaths they take to implement Hong Kong’s laws without fear or favor, but the question of their “independence” is another matter. Independent of the new law and its norms? Not a likely prospect.
Ultimately, it was Lord Reed himself who had the last word in this respect. Responding to the angry official allegations about British politicians still trying to interfere in Hong Kong matters, Reed came forward to acknowledge that the initiative had actually come from him, not anyone else.
He was reported as saying that ‘in the light of the crackdown on freedoms to which we on the Supreme Court, and indeed in our society, are committed, a stage was reached when we were in agreement that time had come for us to withdraw.’ (( L ))
first draft, April 12, 2022; HKFP final draft, post, Apr. 16; updated Apr. 19.
e-mail: pepper@cuhk.edu.hk
hkfocus2017@gmail.com
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Foreign Judges Are Enabling Hong Kong’s Legal Crackdown – The Diplomat
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Justice chief: HK’s judicial independence remains intact | Article | China Daily (chinadailyhk.com)
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Bar Association chair:
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Suzanne Pepper 