Rule of law: Attempts to destabilize Judiciary doomed to failure

Over the decades, the rule of law has been fundamental to the success story that is modern Hong Kong. At its core lies the independent Judiciary, ensuring that justice is equitably dispensed and that there is a level playing field for litigants. Although, in recent times, there have been sustained attempts by anti-China forces to weaken the legal system, they have made little headway, and it has remained as vibrant as ever.

In, for example, the World Justice Project Rule of Law Index 2021, which covers 139 countries and jurisdictions, Hong Kong was ranked 19th. Although this was slightly behind the United Kingdom, at 16th, and Singapore, at 17th, it was well ahead of France, at 23rd, and the United States, at 27th. In terms of specific areas surveyed, Hong Kong was ranked 16th for civil justice, and 18th for criminal justice, which was no mean feat, given the attempts to wreck the city in 2019-20.

Those who wish to harm Hong Kong understand, therefore, that if they are to make any headway, they must strike at its judicial arrangements, and they have shown they are more than willing to play dirty. They know that if they are to weaken China by undermining Hong Kong, the Judiciary must be diminished and then marginalized, and it is not hard to see why. As the insurrection gathered momentum in 2019, it was the judges who held the rioters to account, defended the city’s core values, and made clear that politically inspired violence and destruction would never be tolerated.

This, of course, incensed the protest movement and its armed wing, which retaliated by firebombing the Court of Final Appeal (CFA), the High Court and the Shatin Magistrates’ Courts, as well as by doxxing and threatening individual judges and their families. Realizing this was not enough, they sought support in foreign parts, and the usual suspects stepped forward, with one of the first being the chairman of the British Parliament’s House of Commons Foreign Affairs Committee, Tom Tugendhat. He took aim at the CFA, presumably because its judges had emphasized that violence was intolerable, that criminal justice must be maintained, and that those involved in mayhem would face consequences.

On Nov 5, 2019, long before the National Security Law (NSL) for Hong Kong was enacted, and while judges were struggling to uphold the rule of law, Tugendhat made his move. He publicly raised concerns over British judges sitting as CFA nonpermanent judges, claiming this gave the appearance of British complicity “in a system that is undermining the rule of law”. Although this was mischievous, it lit a fuse, and it was subsequently announced that then-justice secretary, Robert Buckland, and the president of the UK Supreme Court, Lord (Robert) Reed, himself a nonpermanent judge, would periodically review the position, in conjunction with the then-foreign secretary, the hapless Dominic Raab.

In the meantime, Tugendhat’s allies upped the ante, and, on Sept 18, 2020, the former Conservative Party leader Sir Iain Duncan Smith announced that the future of all the CFA’s overseas judges, and not just those from the UK, needed to be considered, as their presence was providing “cover to what is a totalitarian regime”. He even declared that, whereas judges in the UK and Australia were “free to reach decisions without fear or favor”, this was “not the case in Hong Kong”. Although this was a brazen untruth, nobody should have been surprised, as Duncan Smith had very recently joined the Inter-Parliamentary Alliance on China (IPAC), the rabid anti-China grouping established in early 2020 by Luke de Pulford, a functionary (“fellow”) of Hong Kong Watch, the propaganda unit operated by the serial fantasist Benedict Rogers.

Initially, it appeared that the likes of Tugendhat, Duncan Smith and Buckland would not get their way, and that the judges would not be cowed. On Aug 27, 2021, the president of the UK Supreme Court, Lord (Robert) Reed, announced that, after reviewing things with the government ministers, he and his deputy, Lord (Patrick) Hodge, would continue to sit on the CFA, adding that the Judiciary’s decisions “continue to be consistent with the rule of law”. This, not surprisingly, incensed the Sinophobes, and, for example, Johnny Patterson, Hong Kong Watch’s policy director, accused Reed of “providing a veneer of legitimacy to a system which no longer deserves to be considered a bastion of the rule of law”.

Those who wish to harm Hong Kong understand, therefore, that if they are to make any headway, they must strike at its judicial arrangements, and they have shown they are more than willing to play dirty

However, on March 30, 2022, Reed suddenly announced that he and Hodge would, after all, be walking away from their responsibilities on the CFA, thereby leaving their colleagues, including the six retired British judges, in the lurch. To justify himself, and in remarks that could have been drafted for him by Tugendhat, Duncan Smith or Patterson, he declared that he could no longer sit on the CFA “without appearing to endorse an administration” that disregarded basic values. His announcement, unsurprisingly, was rapturously applauded by Raab, now justice secretary, and Liz Truss, his successor as foreign secretary, who had already made their views known to Reed.

However, although Reed’s departure was undoubtedly a success of sorts for those wishing to harm Hong Kong’s legal system, there was still a long way to go. There are still 10 overseas judges from other common law jurisdictions sitting on the CFA, and, as they have all refused to “do a Reed”, they are now themselves in the firing line. As Hong Kong Watch, IPAC and their allies recognize, if they are to finish the job, they must turn up the heat on them, as well as on the Judiciary more generally.

At this point, the US, apparently at IPAC’s urging, joined in the attack. On May 3, 2022, seven US congressmen, including IPAC members Mike Gallagher and Young Kim, wrote to US President Joe Biden to request the imposition of sanctions on Hong Kong judges who handle national security cases. As the CFA sometimes has to consider appeals in NSL cases, this also amounted to an attempt to punish, or at least intimidate, its judges, including the 10 nonpermanent judges from Australia, Canada and the UK. However, as they include two former presidents of the UK’s Supreme Court, lords (Nicholas) Phillips and (David) Neuberger, as well as three former chief justices from Australia and Canada, Biden is unlikely to sanction them, although, if he did, nobody should expect Truss or Raab to lift a finger on their behalf, given their subservience to the US.

In any event, all the signs are that none of the CFA judges will follow Reed and Hodge out of the door, but will instead continue to serve Hong Kong to the best of their ability. Knowing this, the anti-China forces have now hit upon a new tactic, designed to “shame” the 10 overseas judges into reconsidering their position. On May 26, it emerged that a group of seven lawyers (“the signatories”) had written what they called a “legal opinion” on Hong Kong’s judicial situation, intended to alarm the overseas judges, although, on analysis, it turned out to be a crude hatchet job, which was hardly surprising, given the antecedents of some of its authors.

Apart from Buckland, who was sacked as justice secretary last September by the prime minister, Boris Johnson, and now apparently hopes to resurrect his career with hard-right posturing, the signatories included the likes of Sir Geoffrey Nice QC, the Hong Kong Watch patron who infamously presided over the sham “Uyghur Tribunal” in 2021, and Baroness (Helena) Kennedy QC, who, with Nice, was sanctioned by China on March 26, 2021, for having “maliciously spread lies and disinformation” about the Xinjiang situation. A former attorney general of Canada, Irwin Cotler, was also roped in, presumably feeling he had to do something to repay Hong Kong Watch for having recently appointed him one of its “international patrons”.

With Hong Kong Watch breathing down their necks, it is little wonder that the signatories came up with an “opinion” of grotesque imbalance, and for which no serving Hong Kong judge could ever fall. Whereas, for example, they claimed that “systemic threats have already undermined Hong Kong’s judicial independence”, they conveniently ignored not only the constitutional independence that the Basic Law confers on the Judiciary (Art.85), but also the experiences of the judges themselves. As one CFA judge pointedly explained on May 27, nobody in authority had sought to influence him since he joined the Judiciary in the 1980s, and no other judges have reported improper interference. Indeed, the only problem for judges has been the intimidatory tactics of the protest movement and its armed wing.

Although the signatories claimed there are “many alarming features” of the NSL, they failed to inform whoever commissioned their “opinion”, whether Hong Kong Watch, IPAC or the US Congress, that it is actually human-rights heavy, presumably because they knew this was the last thing they wanted to hear. Whereas the NSL stipulates that “human rights shall be respected and protected in safeguarding national security”, and that the provisions of the International Covenant on Civil and Political Rights “shall be protected” (Art.4), it also requires that “the principle of the rule of law shall be adhered to” (Art.5). There was likewise no mention of Britain’s eminent jurist, Lord (Jonathan) Sumption, who joined the CFA in 2019, and who told The Times, on March 18, 2021, that the calls for the British judges to withdraw from the CFA were designed “to pressure Beijing to change its position on democracy”, that the NSL contains “guarantees of human rights”, and that the overseas judges “will serve the cause of justice better by participating in the work of Hong Kong’s courts”.

Betraying, moreover, a woeful ignorance of how the “one country, two systems” policy operates, the signatories also sought to besmirch the NPCSC’s power to issue Basic Law interpretations (Art.158). This was clearly tendentious, not least because the Basic Law provides a vital interface between the Chinese mainland, which adopts the continental legal system of legislative interpretation under the People’s Republic of China Constitution, and Hong Kong, which applies the common law system of judicial interpretation, and an interpretation is only ever being appropriate in closely defined circumstances. Whereas the Hong Kong courts are empowered to interpret the Basic Law, provided the issue under consideration falls within the scope of local autonomy, the NPCSC will need to consider an interpretation if it concerns matters that are the responsibility of the central government, or which engage the relationship between the central authorities and Hong Kong, and this obviously makes sense.

Instead of explaining all this, the signatories made the extraordinary assertion that the NPCSC’s “repeated use of interpretations has significantly restricted Hong Kong courts’ power to interpret the Basic Law”, which could not be further from the truth. Far from being used “repeatedly”, there have only been five interpretations in 25 years, which evidences great restraint. Of these, the NPCSC issued two on its own initiative, the first in 2004, on amending the electoral methods for the chief executive and Legislative Council elections, and the second in 2016, on the requirements for lawful oaths and affirmations. The other three interpretations were all made at Hong Kong’s request, covering right of abode, jurisdiction over acts of state (state immunity), and the duration of the CE’s term of office.

Although, moreover, the “opinion” complained that judges designated to conduct national security cases do not enjoy security of tenure, in the sense that they may not be designated to handle them indefinitely, this is pure mischief-making, as judges who are up to the task can certainly carry on trying cases year after year. If, however, a judge messes up highly sensitive cases, or, as the NSL puts it, “makes any statement or behaves in any manner endangering national security during the term of office” (Art.44), it should surprise nobody if they are moved to other duties. Indeed, the rotation of judges into different areas of responsibility is common in judiciaries everywhere, and, in any event, all judges who are able to discharge their duties and do not misconduct themselves enjoy security of tenure under the Basic Law (Art.89).

In sheer desperation, the signatories also conjured up fanciful fears over trials being transferred to the Chinese mainland for hearing under what they call “nebulous criteria”, although no serving judge worth his salt will be duped by this. It is, of course, possible to conceive of situations in which it is no longer possible for a national security trial to be properly conducted in Hong Kong, and, rather than allowing the suspect to avoid justice, a mechanism is required to enable the case to be tried elsewhere, for which the NSL provides (Art.55). It indicates that there can only be a transfer in exceptional circumstances, as where, for example, law and order has broken down, or war is imminent, or foreign actors are seeking to destabilize the trial. Nobody should feel any concerns over this, not least because such circumstances will only rarely, if ever, arise, and, if they do, the transferred suspect will not only enjoy legal representation (Art.58), but also “a fair trial before a judicial body without undue delay” (Art.58).

Quite clearly, therefore, no judge in his right mind will lose any sleep over this latest squalid attempt to destabilize the CFA. Although IPAC’s “Hong Kong coordinator”, Glacier Chung Ching-kwong, told The Guardian, from her German hideaway, that “democracy protesters want these judges out of Hong Kong”, the CFA judges themselves are made of sterner stuff, and will not be intimidated by Hong Kong Watch, IPAC, the US Congress, the protest movement, Buckland, or anybody else. As with all the city’s judges, they are committed to upholding the rule of law, and it is a fatal mistake, as the signatories should have known, to assume they can ever be pushed around by politically motivated individuals bent on harming China.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The views do not necessarily reflect those of China Daily.