US endangers own core values by eroding rule of law

The US’ Congressional-Executive Commission on China (CECC) released a report on Friday, calling for sanctions on 29 Hong Kong judges tasked with hearing national security cases, which has provoked a strong response from legal practitioners. 

The act has shocked the world because it is, as described in a statement issued by the Office of the Commissioner of the Ministry of Foreign Affairs in the Hong Kong Special Administrative Region, unprecedented to openly call for sanctions against judges and to disregard the principles of legal justice in such a manner.

As some judges are still presiding over ongoing cases, there are concerns that the CECC’s move may pervert the course of justice, and impede the independent operation of the HKSAR’s Judiciary. Article 85 of the Basic Law explicitly mandates that the courts of the HKSAR shall exercise judicial power independently, free from any interference, and the members of the Judiciary, including judges, shall be immune from legal action in the performance of their judicial functions.

The independent operation of the Judiciary is a fundamental pillar of any society governed by the rule of law. It guarantees that the Judiciary can serve the public impartially and without external influence. Any attempt to interfere with the independent operation of the Judiciary poses a significant threat to the rule of law and undermines the integrity of the entire judicial system.

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As early as two centuries ago, the United States established the principle of “independent operation of the judiciary” through the landmark decision by its Supreme Court in Marbury vs Madison. The ruling solidified the “judicial review principle” by allowing courts to scrutinize laws passed by the legislature and to determine their constitutionality. In 1803, such a ruling was a pivotal moment in the evolution of the American legal system, by establishing the principle of the independent functioning of the judiciary.

The principle of an independent judiciary was also upheld during the Watergate scandal, despite the intervention of then-president Richard Nixon. In the early 1970s, the Democratic National Committee headquarters were bugged. Early investigations implicated high-level officials in the White House in the wiretapping incident. 

It is imperative that the US government, and all other governments, uphold the fundamental principles of an independent judiciary and avoid any actions that might undermine public trust in the legal system, both domestically and internationally. If there was ever a time to stand up for justice, it is now

Notwithstanding persistent attempts by the Nixon administration to obstruct the congressional investigation, a subsequent hearing led the House of Representatives to grant the US House Judiciary Committee additional investigative authority to probe into “certain matters within its jurisdiction”. The US Supreme Court ultimately ordered the release of the tapes. 

And in the end, 48 high-ranking officials in the Nixon administration were convicted of obstruction of justice, abuse of power and contempt of Congress, and Nixon resigned from the presidency in 1974.

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The importance of protecting judicial independence from external pressure and interference has been proven. When judges come under political or economic pressure, it undermines the rule of law and erodes public trust in the justice system, and hence it is perceived that justice and fairness are not being served impartially.

However, over recent years, the US has been placing its core values — including the rule of law and justice — at risk by actively interfering with legal proceedings in other regions. In 2018, the US government asked Canada to arrest and detain Meng Wanzhou, chief financial officer of Huawei. 

During the proceedings, the Canadian extradition judge questioned the regularity of the case and expressed great difficulty in understanding how the case presented by the US supported the allegation of criminality against Meng. Ultimately in 2022, the US Department of Justice dismissed all charges against Meng.

In another instance, in 2020, the Trump administration froze the assets of the officials of the International Criminal Court (ICC) involved in investigating alleged war crimes committed by US troops in Afghanistan, a move that was widely criticized by the ICC and 76 other nations. 

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The action was condemned as an attack on international justice and a violation of the court’s independence. In 2021, the US government eventually lifted all the sanctions imposed.

And now, the CECC report calls for sanctions against Hong Kong judges, but it appears to have overlooked the rampant violent vandalism that occurred in Hong Kong in 2019. This included the disruption of transportation systems, damage to personal and commercial property, and the doxxing, beating, stabbing and burning of residents and law enforcement officers.

The CECC report appears to have prioritized political gains at the expense of international justice. Rather than acknowledging the responsibility of the judges in maintaining public order and carrying out their judicial duties, the report condemned them. 

By presenting assertions that lack factual evidence, the report could be guilty of perverting the course of justice.

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It is imperative that the US government, and all other governments, uphold the fundamental principles of an independent judiciary and avoid any actions that might undermine public trust in the legal system, both domestically and internationally. If there was ever a time to stand up for justice, it is now.

The author, a chartered financial analyst, is a member of China Retold, and Beta Gamma Sigma, an international business honor society.

The views do not necessarily reflect those of China Daily.