Editor’s note: The following are opening remarks of Grenville Cross SC at a virtual seminar hosted by The China Centre, Jesus College, University of Cambridge, on Tuesday, May 25, 2021.
Good morning, Ladies and gentlemen.
I am indebted to Professor Peter Nolan for inviting me to share with you my thoughts on Hong Kong’s future, principally in regard to criminal justice and the rule of law. To do those topics justice, however, I must first provide a context.
As you will know, Hong Kong’s foundation stone is its Basic Law, effectively its mini-constitution. Enacted by the National People’s Congress in 1990, it took effect on July 1 1997, and is a remarkable constitutional document. At its heart is continuity, and it provides that the socialist system and policies shall not be practiced in Hong Kong, and that its previous capitalist system and way of life, including its common law practices, shall remain unchanged for 50 years. The Basic Law not only reflects the substance of what was agreed between China and the United Kingdom in the Sino-British Joint Declaration of 1984, but it also took matters considerably further, and let me give you two striking examples.
Although the Joint Declaration said nothing about democracy or universal suffrage, beyond stating that the chief executive would be appointed on the basis of either election results or local consultations, with Annex I indicating that the legislature would be constituted by elections, China nonetheless incorporated some far-sighted measures into the Basic Law. They not only included detailed mechanisms for electing the city’s Chief Executive and Legislative Council, but also stipulated that “universal suffrage” was “the ultimate aim” for the elections of both, which was remarkable, and went well beyond what had been agreed with the British negotiators.
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The legal system, despite foreign attempts to weaken it, remains strong and vibrant. We are determined to defend it, come what may, and I believe it will continue to deliver justice to the people of Hong Kong for many years to come.
This commitment to universal suffrage was a first for China, with a decision having been taken to try Western-style elections in Hong Kong and determine their feasibility. In many ways, therefore, Hong Kong was an experiment for China, an exercise in the sort of democratic model which is popular in the West. Until this model was tested, nobody would know for sure if it was suited to China’s own development. If it succeeded in Hong Kong, all well and good, and the lessons learned could have assisted China as it mapped out the direction of travel for other major cities, like Guangzhou, Ningpo and Shanghai. If, however, it failed, that would be a pity, but at least the idea would have been tested, and found to be unsuited to China’s circumstances. So it was that, whereas there were only 20 directly elected members of the Legislative Council in 1998, this rose to 35, or half the total, by 2012, although in that year the democratic experiment began to unravel.
Whereas some of the elected legislators refused to take their oaths of office in the manner prescribed by law, others prevented the Legislative Council from functioning for months on end. Some legislators engaged in, or supported, violent activities both within the legislative chamber and on the streets, and tried to block the funding the police force needed to maintain law and order. After the riots failed to topple the government in 2019, they then pursued an alternative strategy, which involved gaining control of the Legislative Council, blocking all legislation, forcing the Chief Executive to resign, and provoking a confrontation with Beijing, which would have spelt the death knell for the “one country, two systems” project. In 2015, moreover, after Beijing had proposed, in line with the Basic Law, that the Chief Executive should be elected by universal suffrage in 2017, this was voted down in the Legislative Council, by legislators who felt the proposal did not go far enough.
The tipping point for Beijing, however, may well have come when opposition legislators visited the United States in 2019, and urged Congress to enact laws which would be harmful to Hong Kong and its officials, and a change of direction became inevitable. We have, therefore, now reached the point in the city’s development at which, because of failures in the democratic experiment, an overhaul has become necessary, although the commitment to universal suffrage as the ultimate aim of the electoral processes remains intact.
The second aspect of the Basic Law I should highlight concerns national security. Although the Joint Declaration was silent on this, once China enacted the Basic Law it allowed Hong Kong to enact its own laws to combat such things as treason, secession, sedition and subversion, which was a huge concession. In all the countries of which I am aware, national security laws are enacted by national parliaments, not by regional assemblies, so by authorizing Hong Kong to enact these laws on its behalf the Chinese authorities placed great faith in the city. They were obviously concerned that if China’s own draconian national security laws were extended to Hong Kong, this might worry some people, and they therefore decided that the city should be allowed to enact the laws which best suited its own circumstances and with which its people felt most comfortable, and it was allowed to do this in its own good time.
However, when the Hong Kong Government tried to enact a national security law in 2003, it was strongly opposed by opposition groups, which mobilized street protests. It was also heavily criticized by the EU, the UK and the US. Bowing to pressure, the government withdrew its proposals, which was a great pity, as they were far milder than the laws which were eventually enacted in 2020, and they could have helped to protect the city from the insurrection which engulfed it in 2019-20. Once the national security proposals were abandoned in 2003, the legal void which resulted was ruthlessly exploited by forces hostile to China and to its governance of Hong Kong, and the “one country, two systems” project only narrowly survived.
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Although, as both the Joint Declaration and the Basic Law make clear, Hong Kong is an integral part of China, coming directly under the Central People’s Government, there were many, in the UK and elsewhere, who saw its reunification with China as basically a “Rino”, or reunification in name only. In other words, the “one country, two systems” policy meant little more than that Hong Kong was half in and half out of China. Even in the post-colonial era, they were unwilling to accept the new realities, imagining that they could still shape the city’s development, and their modus operandi was intriguing.
If anything happened in Hong Kong of which they disapproved, the UK and its partners ritualistically complained that its government was breaching the Joint Declaration, imagining that allegations of bad faith would suffice to bring it to heel. Their problem, however, was that, when pressed, they were unable to substantiate their claims. Although, as we have seen, the Joint Declaration said nothing about either democracy or universal suffrage, this did not stop the British Foreign Secretary, Dominic Raab, from declaring, when Beijing announced its electoral reforms for Hong Kong on March 11, that they breached the “legally binding” Joint Declaration, without, of course, detailing how. In fact, the electoral reform package was introduced in conformity not only with the Basic Law, but also with China’s Constitution.
Again, after the National Security Law was enacted on June 30 last year, Mr Raab duly announced that it had been imposed “in breach of the Joint Declaration”, which was extraordinary. As anybody who has read the document could have told him, the Joint Declaration said nothing whatsoever about national security, which is unsurprising as it involves China’s own defense interests. Indeed, the UK never proposed, and China never agreed, that Hong Kong would be denied the laws it required to defend itself from subversion, terrorism or other threats, or to protect the country. Under China’s Constitution, national security is always a matter for the country as a whole, just as it is in the UK, and does not fall within Hong Kong’s high degree of autonomy, and any attempt like this to rewrite history is readily foiled by the fine print of the Joint Declaration itself.
By 2019, therefore, Hong Kong was in a position whereby it not only lacked any national security laws, but it only had 20 fugitive offender surrender (extradition) agreements in place, and this naturally benefited wanted persons, who could not be returned to face justice elsewhere. This meant that the city was unable to discharge its international obligations to combat crime, and it became a safe haven for offenders from across China and around the world. However, when a fugitive surrender mechanism was proposed, following a case where a local man allegedly murdered his girlfriend in Taiwan and then flew back to Hong Kong, it attracted hysterical opposition. The proposal would have enabled Hong Kong, subject to judicial oversight, to return criminal suspects to the 177 jurisdictions with which it has no surrender agreements, including the other parts of China. A sensible proposal to enable offenders to be brought to account in those 177 jurisdictions was, quite simply, hijacked by hostile forces, whoweaponized it in order to demonize China, wholly disregarding the merits of the proposal, which had at its epicenter the city’s obligation to uphold criminal justice internationally.
What irked many people at the time, including me, was the sheer hypocrisy of the criticisms. The EU, for example, notwithstanding that 10 of its own members, including France, Italy and Spain, not only had extradition treaties of their own with China, but were actively returning fugitive offenders to Beijing for trial, and doing so without problem, voiced its opposition to Hong Kong having a similar arrangement, even though it is an integral part of China.
The insurrection which gripped Hong Kong in 2019-20 was, therefore, stoked by irrational fears. It was characterized by the destruction of public facilities, universities, private businesses and restaurants, by brutality towards people who came from other parts of China or who held different opinions, by secessionism – a red rag to China’s bull if ever there was one – and by violence intended to topple the government and provoke an armed intervention by Beijing. Despite this, the Chinese authorities kept their nerve, and refused to mobilize the People’s Liberation Army. Instead of concluding that the “one country, two systems” project had failed, as they could well have done, they decided to keep faith with the city, and to give it another chance. They did this by means of the National Security Law, which has restored sanity, peace and stability, and enabled the business world to flourish. It has, moreover, provided renewed hope that the city’s current way of life can be extended beyond 2047, when the “50 years unchanged” arrangement is due to expire.
In other words, the National Security Law has ensured the survival of the “one country, two systems” project, and it has been welcomed on that account. However, as soon as the new law was implemented, the Five Eyes intelligence alliance reacted negatively, adopting a series of measures designed to harm Hong Kong. The US canceled the city’s favorable trading status and sanctioned its officials, banned the use of the “Made in Hong Kong” label on its exports, and expressed the hope that, as Donald Trump so eloquently put it, its financial markets “will go to hell”. Following the US lead, its Five Eyes partners introduced hostile travel advisories, thereby endangering the city’s tourist industry and jobs, halted the export of strategic items, and even encouraged citizens to emigrate.
Pausing there, those seeking to harm Hong Kong have never explained why, if they are genuinely concerned over the National Security Law, they want to vent their anger against Hong Kong and its people, who were presented with a fait accompli. The answer can only be that they hope to hurt China by harming Hong Kong, which they see as collateral damage. However deplorable, this is nonetheless a logical tactic, given great power rivalries, but everybody should be aware of what is going on.
The hostility of the Five Eyes partners toward Hong Kong has, moreover, been multi-faceted, with steps also being taken to weaken its legal arrangements, and, in particular, its criminal justice system. Shortly after the National Security Law was enacted, the UK suspended its extradition arrangements with Hong Kong, as did its partners, which was both senseless and counter-productive. In consequence, fugitives, no matter how grave their crimes, can now flee Hong Kong and claim safe haven in Britain, and vice versa, and Mr Raab has yet to explain how, criminals apart, this benefits anybody, yet this was only the start.
Since 1997, there have, under a UK agreement with Hong Kong, always been two serving British judges sitting as non-permanent judges in the Hong Kong Court of Final Appeal, together with retired judges from the UK, Australia, Canada and New Zealand. At present, the two serving judges are Lords Reed and Hodge, respectively the president and deputy president of the UK Supreme Court. Among the eight retired British judges are Lord Reed’s three predecessors, Lords Phillips and Neuberger and Baroness Hale. This arrangement has resulted in judgments of the highest quality, and the presence on the Court of eminent jurists from other common law jurisdictions has promoted public confidence in the rule of law.
Imagine, therefore, the concerns we felt in Hong Kong when Mr Raab announced in November that he plans to discuss with Lord Reid “whether it continues to be appropriate for British judges to sit as non-permanent judges on the Hong Kong Court of Final Appeal”. Although this will have delighted those on the hard right of the Conservative Party, who have been seeking the judges’ withdrawal for some time, it has played less well with those, including government opponents, who believe that the overseas judges contribute greatly to the success of the common law in Hong Kong, and help protect fundamental freedoms. If Mr Raab is genuinely concerned about the National Security Law, he should be encouraging the British judges to remain, so that, when cases reach their Court, they can help to ensure just outcomes.
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Notwithstanding these assaults on our legal system, I remain confident that, with or without the UK’s support, the rule of law will survive in Hong Kong, and this will help to maintain its unique status, as a financial, legal and trading center, serving not only China but also the Asia-Pacific Region. In particular, the overseas judges themselves have made clear that they will stand firm in the face of attempts to pressurize them into quitting the Court of Final Appeal. On this, nobody has been more vocal than Lord (Jonathan) Sumption, who, writing in The Times on March 18, declared “it is not a proper function of judges to participate in political boycotts”, adding that the calls for the withdrawal of the judges had nothing to do with judicial independence or the rule of law, but were intended “to pressure Beijing to change its position on democracy”, which was unjustifiable. Lord Sumption also pointed out that, in the British era, there was a democratic deficit in Hong Kong, but that “no one regarded this as inconsistent with the rule of law or the participation of British judges”, and there was no basis for a different approach now.
In February, moreover, it was announced that two other British judges, Lords Neuberger and Walker, were taking up 3-year extensions to their existing terms of office on the Court, as also was Justice Murray Gleeson, the former Chief Justice of Australia. From Canada, the former Chief Justice, Beverley McLachlin, the first female judge on the Court of Final Appeal, declared that the Court is “independent”, provides a “very high level of judging”, and ensures the law is “very vigorously applied”. I am confident, therefore, that, despite Mr Raab, we will continue to have a strong and vigorous judiciary in the years to come.
Although, moreover, the National Security Law has been criticized in the UK and elsewhere, the professed concerns are not well founded. As Lord Sumption has pointed out, it contains “guarantees of human rights”, with Article 4 stipulating that “human rights shall be respected and protected in safeguarding national security”, and that the “rights and freedoms” which residents enjoy under the Basic Law, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, “shall be protected in accordance with the law”. In addition, Article 5 enshrines the presumption of innocence, and guarantees the trial rights of accused persons. Quite clearly, therefore, the National Security Law is human rights heavy, although nobody listening to Mr Raab would realize this.
In Hong Kong, we have a tried and tested legal system, operated by men and women of the highest quality. Its judges are fiercely independent, highly professional and of impeccable integrity, and its procedures derive from the common law. The city’s prosecutors, like its judges, enjoy constitutionally guaranteed independence, and they only prosecute cases if the evidence discloses a reasonable prospect of conviction, which is the same test that is applied in England and Wales, and throughout the common law world. Anybody charged with a crime is assured of a fair trial, with convictions only resulting if guilt has been established beyond reasonable doubt. The legal system, therefore, despite foreign attempts to weaken it, remains strong and vibrant. We are determined to defend it, come what may, and I believe it will continue to deliver justice to the people of Hong Kong for many years to come.
Thank you.