The International Bar Association was founded in 1947, and now comprises some 190 bar associations and law societies, including the Hong Kong Bar Association (HKBA). Although its founders hoped it “could contribute to global stability and peace through administration of justice”, it is only as good as its component parts, and it has sometimes gone astray.
It has, for example, wholly misinterpreted the situation in Hong Kong, although it is easy to see why. Its analyses of the insurrection in 2019 and the National Security Law for Hong Kong of 2020 were based on highly flawed information. When the HKBA was chaired by Philip Dykes, from 2018 to 2021, and then by Paul Harris, from 2021 to 2022, it operated as a quasi-political party, hostile to the government, and its prejudices would have influenced the thinking of people elsewhere, including the UK-based IBA.
Victor Dawes, will need to spell things out clearly, and dispel the myths previously generated. If, after that, the IBAHRI persists in its aggressive posturing, it will be clear that it is now captive to a hostile political agenda, and that its credibility is a thing of the past
In 2019, the HKBA demonized the special administrative region government’s fugitive-surrender proposals, and joined hands with the Civic Party in suggesting basic freedoms were endangered. However fanciful, some local people were deceived and took to the streets, while outside troublemakers waxed lyrical about threats to the rule of law. In reality, the proposals were a measured attempt to advance criminal justice by creating a mechanism to facilitate the return, subject to judicial oversight, of criminal fugitives to the 177 jurisdictions in respect of which there were no surrender agreements, and it was only the offenders who had anything to fear.
When the protests turned violent, on June 9, 2019, the HKBA aggravated tensions by irresponsible posturing, and this helped to fuel animosity toward the Police Force, the government and the central authorities. Once the protest movement’s excesses became indefensible, the HKBA’s criticisms of the culprits were, at best, mechanical and halfhearted, and convinced nobody. Indeed, its vice-chairman, Edwin Choy Wai-bond, resigned in disgust, highlighting twisted thinking and a failure of leadership, although the IBA was probably unaware of this.
When, to general relief, Dykes finally departed in January 2021, he used his farewell remarks to again provoke alarm. Whereas, on July 2, 2020, the HKBA had declared it was “greatly concerned with the contents of the National Security Law and the manner of its implementation”, this time he turned on the judiciary. He claimed the security law “has diluted judicial independence”, and that there was no longer “a totally independent judiciary, as the judges are designated by the chief executive”. If, as seems likely, the IBA picked up on this, it would naturally have been worried.
Its concerns, however, would have been allayed if the IBA had known that the then-chief justice, Geoffrey Ma Tao-li, had assured everybody that there was nothing to worry about. He had pointed out that all designated judges come from the ranks of the existing judiciary, and that judges are only appointed on the basis of their judicial and professional qualities. All judges, moreover, by virtue of their judicial oath, are committed to discharging their duties “without fear or favor, self-interest or deceit”, and, had it appreciated this, the IBA would undoubtedly have felt reassured.
Once appointed, Harris, a member of the UK Liberal Democrats, a party that was hostile to both the National Security Law and China, immediately picked up where Dykes had left off. He said parts of the National Security Law were “profoundly offensive” and incompatible with the Basic Law, and announced that he intended to seek its amendment. This, of course, was fanciful, given that it had been enacted by the National People’s Congress Standing Committee, but it will have played well with anti-China elements elsewhere. So also would his vilification of the Police Force, which he accused of abusing the law by arresting criminal suspects in a “deliberate intimidation of the democratic movement”, which was extraordinary, given he had not seen the evidence.
With Dykes and Harris in the driving seat for those four eventful years, it was no surprise that the IBA, along with China watchers elsewhere, acquired a distorted impression of the situation. Indeed, once the National Security Law was enacted in 2020, it triggered a hostile reaction in foreign parts, fanned by the HKBA. In particular, the US and its Five Eyes partners suspended their fugitive surrender agreements with the city, meaning that, for example, fraudsters, killers and sex offenders could no longer be brought to justice.
Although the suspensions played directly into the hands of international criminals, for whom the world is now a safer place, the National Security Law has provided Hong Kong with the tools it needs to protect itself from terrorism, subversion and secessionism, as well as from hostile activity directed at it from afar. Throughout the insurrection, those seeking to overthrow “one country, two systems” received foreign encouragement, and this took various forms, financial and otherwise. Whereas, for example, the CIA-linked National Endowment for Democracy provided money and the Oslo Freedom Foundation shared strategies for effective street protests, the US Agency for Global Media assisted with disinformation. At one point, there was even an appearance on the streets, in a supporting role, of freelancers from Ukraine’s notorious neo-Nazi Azov Brigade, although other foreigners were usually less overt.
Little attempt, however, was made by China’s antagonists elsewhere to conceal where their sympathies lay. When, for example, Brian Leung Kai-ping, who helped to vandalize the Legislative Council in 2019, fled to the US, he was not only given safe haven but invited to Congress as an honored guest. Once the convicted felon Nathan Law Kwun-chung had run away to the UK, he was granted asylum, feted by the likes of Chris Patten, and invited to meet the visiting then-US secretary of state, Mike Pompeo.
Since foreign forces, believing themselves safe, were so actively involved in subversive activity in 2019-20, the National Security Law has sought to protect Hong Kong from them in future, which is comforting. It provides that the prosecution of offenses is not limited by either nationality or territoriality, meaning that malign individuals everywhere can no longer harm Hong Kong with impunity from afar. It states that the National Security Law “shall apply to offences under this Law committed against the Hong Kong SAR from outside the Region by a person who is not a permanent resident of the Region” (Art.38).
This provision now buttresses the rule of law, and anybody who violates the national security provisions, whether by conspiring with people in Hong Kong, organizing subversive activities of their own, or otherwise, is now prosecutable. Although this provision upset some people, particularly the culprits who thought they were safe, it has provided Hong Kong with an extra layer of protection from those who wish to destroy the “one country, two systems” policy. Laws like this, which provide jurisdiction over people not resident in a particular place, are also deployed elsewhere.
In Australia and the United States, for example, extraterritorial jurisdiction has been established over acts of terrorism. In 2019, the UK enacted its Counter-Terrorism and Border Security Bill, and this established a like jurisdiction over specified offenses. The US, moreover, is currently seeking the extradition from the UK of the WikiLeaks founder, Julian Assange, and the principal charges against him concern the unauthorized release of classified information, contrary to its Espionage Act. It is doing this even though Assange is an Australian national with no ties to the US, and his alleged crimes were committed outside the US.
The reason why jurisdictions like the US and Hong Kong are able to assert territorial jurisdiction can be found in the “protective principle”, a rule of international law. It enables jurisdiction to be exercised over somebody whose conduct outside its borders endangers its vital interests, including its security and governmental functions. The principle can be asserted regardless of where or by whom the act is committed, and it has been used by the US, for example, to counter attempts to violate its customs laws, thereby combating illicit narcotics importation. It has also been invoked to claim jurisdiction over individuals making a false visa application at an American consulate abroad.
Since 2017, when the serial fantasist Benedict Rogers, having been banned from entering Hong Kong, founded the London-based Hong Kong Watch (HKW), it has been involved in activities inimical to Hong Kong, some brazen, some secretive, and all abhorrent. They have included the dissemination of fake news intended to destabilize society, aiding and abetting criminal suspects, supporting a bogus parliamentary inquiry into alleged police brutality, urging the suspension of fugitive surrender agreements, crowdfunding for private terrorism prosecutions against Hong Kong-based British police officers involved in riot control duties, pressurizing judges to withdraw their services, and seeking the imposition of sanctions on officials. It is a sickening litany, born of extreme Sinophobia, and the “protective principle” is tailor-made for such situations.
On March 10, therefore, it came as no surprise that the Security Bureau wrote to Rogers, as chief executive officer, telling him to remove the HKW website, or risk prosecution. His organization was accused of “engaging in activities seriously interfering in the affairs of the HKSAR and jeopardizing the national security of the People’s Republic of China”. These activities were said to include “lobbying foreign countries to impose sanctions or blockade and engage in other hostile activities”, and they were aimed at “seriously disrupting the formulation and implementation of laws or policies” of the regional and central governments.
In response, Rogers, believing himself above the law, declared that HKW would not be “silenced”, and mobilized some of its patrons. One of them, Chris Patten, hysterically denounced an attempt to “stamp out freedom of expression and information”, while another, Sir Geoffrey Nice, best known for his involvement in the two phony tribunals that accused China of human-organ harvesting and genocide of Xinjiang’s Uygurs, expressed his concern at an “interference with the right to think, speak, and act in accordance with human rights”. Even the foreign secretary, Liz Truss, eager to shore up her fading leadership ambitions, bleated away about “unjustifiable action”, blithely disregarding HKW’s nefarious activities on British soil.
In the event, Rogers and his cronies made so much noise that they were heard by the IBA’s Human Rights Institute (IBAHRI), which promptly jumped on the bandwagon. On March 23, it highlighted HKW’s situation and called on the international community to suspend its extradition treaties with Hong Kong. Its co-chair, Anne Ramberg, said this was necessary “to protect those attempting to protect human rights wherever they reside”. She seemed wholly unaware that the agreements she wanted suspended already provide protections against surrender for offenses if they can be shown to be of a political character, or that the proposal would be a godsend for the global criminal fraternity.
To beef up its call, the IBAHRI even indulged in a generalized attack on the National Security Law, pointing out that 160 suspects had been arrested under its provisions, albeit far fewer have actually been prosecuted. Clearly determined to dish the dirt, it ignored the circumstances that made the new law vital, as well as Hong Kong’s need to protect itself from those who wish it ill. It also disregarded the extent to which foreign-based entities have worked with local fanatics to destroy the “one country, two systems” governing policy, believing this is as good a way as any to weaken China and hamper its rise.
The IBAHRI, despite its human rights mandate, surprisingly ignored the human rights heavy nature of the National Security Law, which should have been music to its ears. At the outset, the law states that “human rights shall be respected and protected in safeguarding national security”, that the International Covenant on Civil and Political Rights “shall be protected” in its application, and that the “principle of the rule of law shall be adhered to” (Art.4). A suspect, moreover, “is presumed to be innocent until convicted by a judicial body”, and the traditional rights of accused persons “shall be protected” in national security trials (Art.5).
If, therefore, the IBAHRI, rather than grandstanding, had taken the trouble to understand the nature of the National Security Law and how it is working in practice, its professed concerns could have been allayed. Although only a handful of cases have been tried, they were all conducted with impeccable fairness, and justice was done. The defendants enjoyed legal representation, traditional evidentiary rules were applied, and convictions only resulted once judges were satisfied of guilt beyond reasonable doubt.
Quite clearly, therefore, the IBAHRI, either because it has been misled or has not done its homework, has shown itself to be hopelessly at sea over the situation in Hong Kong. Even though the HKBA is a long-standing IBA organizational member, an irresponsible attack has nonetheless been launched against Hong Kong on the back of faulty information, which is unforgivable. Although some may see malice at play, particularly when the IBAHRI’s co-chair, Mark Stephens, mischievously described HKW as “much-respected”, they are hopefully mistaken. That said, the IBAHRI’s call feeds directly into the anti-China policies of the US and its partners, and will have delighted them. However, instead of acting as a cheerleader for HKW, the IBAHRI would be well advised to concentrate on ascertaining what is actually going on in Hong Kong and why, and this is where the HKBA comes in.
Since January 20, 2022, the HKBA has been under new management, and it must at least try to put the IBAHRI straight. Its new chairman, Victor Dawes, will need to spell things out clearly, and dispel the myths previously generated. If, after that, the IBAHRI persists in its aggressive posturing, it will be clear that it is now captive to a hostile political agenda, and that its credibility is a thing of the past.
The author is a senior counsel and professor of law, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.