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Targeting HK judiciary should be condemned

By Grenville Cross | China Daily Global | Updated: 2023-05-29 09:09
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Photo taken on July 14, 2020 shows the Golden Bauhinia Square in Hong Kong. [Photo/Xinhua]

Since 2020, the United States has sought to harm Hong Kong and its people in various ways. Whereas former president Donald Trump revoked trade preferences, his successor, Joe Biden, issued the Hong Kong Business Advisory in 2021, warning US companies of the "dangers" of doing business there.

Although the economy of Hong Kong has survived, the Congressional-Executive Commission on China, an independent agency of the US government, has an alternative strategy. As the rule of law underpins the city, the commission has decided to threaten its judiciary, one of the most professional in the Asia-Pacific region.

The Hong Kong Court of Final Appeal oversees the legal system and comprises distinguished local judges and eminent global jurists. They include two former chief justices of Australia, a former chief justice of Canada and two former presidents of the United Kingdom's Supreme Court. This makes it very difficult for China's antagonists to claim the city's rule of law is on its last legs, and the Congressional-Executive Commission on China, therefore, wants to frighten them and the other judges away.

On May 12, it called for 29 of Hong Kong's judges to be sanctioned, because they have handled national security cases. They include the chief justice, Andrew Cheung Kui-nung, and five other judges (some being UK nationals) of the Hong Kong Court of Final Appeal. These, paradoxically, are the very people who have ensured throughout that the National Security Law for Hong Kong is properly applied.

The national security law, which further sustained the "one country, two systems" policy after the unrest of 2019-20, incorporates the International Covenant on Civil and Political Rights and upholds human rights.

The US itself has numerous national security laws. Whereas the police enjoy wide investigative powers, the cards are invariably stacked against suspects, and individual rights count for little (as of February, there were still 31 detainees being held without trial in Guantanamo Bay, Cuba).

Although the Congressional-Executive Commission on China claimed that the 29 judges had weakened the "rule of law and independent judiciary", and are "arbitrarily jailing over a thousand political prisoners", this is fake news at its worst.

The "political prisoners "include arsonists, bomb makers and rioters, many of whom have pleaded guilty. The National Security Law for Hong Kong has been applied with restraint, and only about 20 people have been convicted of national security offenses.

The targeted judges, moreover, have ensured that national security cases are fairly handled, that suspects are only convicted if guilt is proved beyond a reasonable doubt, and that appeals are resolved on the basis of legal principles.

As some of the national security cases that the US commission highlighted are still before the courts, its targeting of the judges handling them is tantamount to an attempt to pervert the course of public justice, and the Hong Kong Police Force should investigate.

In 2022, the commission tried to derail the criminal proceedings against the so-called "Hong Kong 47" (calling them "champions of democracy"), and urged the government to drop the charges they faced (over an allegedly subversive plot to paralyze the legislature and provoke a constitutional crisis). This was entirely mischievous, and 31 of the suspects have since confessed to their guilt, showing the charges were legitimate.

The US commission also called on Biden last year to sanction six prosecutors, which was another frontal assault on the US' much-vaunted "international rules-based order". As the United Nations indicated in its Havana Declaration of 1990, "States shall ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability."

Although, in its early days, the Congressional-Executive Commission on China affected objectivity, it no longer does. In February, for example, it nominated six individuals from Hong Kong for the Nobel Peace Prize, including felons like Jimmy Lai Chee-ying, a convicted fraudster, and Joshua Wong Chi-fung, who was convicted of an unlawful assembly involving violence that injured 10 people, one seriously.

In 1985, the UN adopted its Basic Principles on the Independence of the Judiciary. They provide that the independence of the judiciary should be constitutionally guaranteed (as it is by Hong Kong's Basic Law), and that it is "the duty of all governmental and other institutions to respect and observe the independence of the judiciary". It is this sacred principle that the US commission seeks to trample, but wiser heads will hopefully prevail.

After all, the commission's proposal will horrify everybody who values the "international rules-based order." Any attempt to interfere with judges is abhorrent, and those responsible must be condemned. Judicial independence is a fragile commodity, and those who imperil it are beyond the pale.

The author is a senior counsel and law professor and was previously director of public prosecutions of the Hong Kong Special Administrative Region. The views do not necessarily reflect those of China Daily.

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