On the 25th Anniversary of the establishment of the Hong Kong Special Administrative Region and in the British national interest, there should be a correct understanding of the situation in Hong Kong. It is important for there to be a healthier relationship with China.
Dear Prime Minister,
Greetings, from Hong Kong.
Although you are facing political turbulence at home, you will hopefully be heartened to know that Hong Kong is in fine fettle as it celebrates the 25th anniversary of the handover in 1997. Notwithstanding the doom and gloom merchants, the problems of the recent past have been satisfactorily resolved, and it is now all systems go. The overall mood here is pretty positive, and an increasingly bright future beckons.
There is a general recognition, moreover, that the “one country, two systems” policy, enshrined in the Basic Law, has shown great resilience, given that it has successfully guided Hong Kong through good times and bad. It is now clear that this policy will continue to shape our fortunes over the next 25 years, meaning our way of life and capitalist system are secure. On July 1, moreover, President Xi Jinping, who was warmly welcomed on his visit here, indicated that, given the policy’s success, “it must be adhered to over the long run”, meaning it will endure after the 50 years envisaged by the Sino-British Joint Declaration of 1984 (JD).
As you may agree, this is fantastic news, not only for Hong Kong residents, but also for everybody who believes that Hong Kong’s unique brand should be preserved. The legal and business worlds, in particular, are elated by President Xi’s announcement that the common law system, including the independent Judiciary, will be maintained after 2047.
It would, of course, have been gratifying for Hong Kong to have received some congratulatory words from you on this auspicious occasion, and your admirers here, like everybody else, feel somewhat let down by your infelicitous comments. It certainly appears that our situation has not been properly explained to you by your officials, some of whose performances, frankly, have been lamentable. Take, for example, your former Foreign Secretary, Dominic Raab, whose grasp of his portfolio, as you found out to your cost, was lamentable.
Insofar as Mr Raab is remembered at all in legal circles here, it is for his egregious gaffe in early 2021 when, on Sky News, he denounced the eminent British barrister, David Perry QC, for having agreed to prosecute a National Security Law case in Hong Kong, even calling him “pretty mercenary”. In fact, Mr Perry had been briefed to prosecute a case involving an unauthorised march, wholly unrelated to national security. Once his blunder was exposed, Mr Raab apologised neither to his victim, whom he had harmed, nor to the public, whom he had misled, which gives you his measure. You, of course, removed him several months later, after the Afghanistan fiasco, but his successor, Liz Truss, knows even less, and her toe-curling howlers have now become the stuff of legend.
As you will recall, when she visited Moscow in February to meet Russia’s Foreign Minister, Sergei Lavrov, she was wholly unaware that the Rostov and Voronezh regions are part of Russia, even declaring, to everybody’s amazement, that the UK would never recognise them as Russian. Shortly thereafter, when the BBC asked her if Britons could go to fight in Ukraine, she responded “Absolutely, if that’s what they want to do”, blissfully ignorant, despite being a former Justice Secretary, that this is a criminal offense under British law. Although you tried to row back on her blunder, her inadequacies are now there for all to see. And heaven only knows what sort of duff advice she, and Mr Raab previously, has been giving you on the HKSAR.
Some inkling, however, is afforded by her churlish observations on the city’s 25th anniversary. Instead of complimenting President Xi for upholding the “one country, two systems” policy, she accused the Chinese mainland of “breaking the legally binding commitments it signed up to under the Joint Declaration”, even complaining about the “steady erosion of political and civil rights and Hong Kong’s autonomy”. You, regrettably, appear to have fallen for her soundbites, with The Guardian quoting you as saying “It’s a state of affairs that threatens both the rights and freedoms of Hongkongers, and the continued progress and prosperity of their home”, which, frankly, was wide of the mark. You will, I hope, be relieved to know that things are far rosier than you have been led to believe.
However, first things first. In waffling away mechanically about alleged breaches of the JD, Ms Truss displayed a woeful ignorance of its contents. Although the JD acknowledged that Hong Kong would have a “high degree of autonomy” after 1997, subject to China’s sovereignty, it specifically excluded “defence affairs”, and this exclusion is now enshrined in the Basic Law itself. As Ms Truss should have told you, the JD said nothing about national security, which concerns China’s own defence interests.
Indeed, the UK never proposed, and China never agreed, that, after 1997, Hong Kong would be denied the laws it requires to defend itself from subversive activities, secession or terrorism, or to protect the nation. Under China’s Constitution, moreover, national security is always a matter for the country as a whole, just as it is in the UK. With the National Security Law in place, Hong Kong is now, after a failed insurrection in 2019-20, enjoying the peace and stability that people in the UK take for granted.
Although Ms Truss also waxed lyrical about “political and civil rights”, she was clearly unaware that the main body of the JD said nothing about democracy. In fact, the only reference lies in China’s Annex, where “elections” are described as the means of choosing the Chief Executive and the Legislature, without particularisation. It was only when the Basic Law was enacted by the National People’s Congress in 1990 that a radical program for the democratisation of Hong Kong was unveiled, and it went far further than anybody, including the British, had ever imagined possible.
Although, in the British colonial era, there was no democracy to speak of for over 150 years, with the Governor being appointed by the King or Queen, on the Prime Minister’s recommendation, without local consultation, and the Legislature, until the 1980’s, being appointed by the Governor, this has all now changed. Whereas the Chief Executive is now a local person chosen by an election committee of 1,500 members representing various sectors, the 90 legislators are all now popularly elected, either directly or indirectly, which is a huge break with the city’s undemocratic past. Quite clearly, Ms Truss has not explained any of this to you, and you are also presumably unaware that the Basic Law provides for universal suffrage as the “ultimate aim” in the election of both the Chief Executive and the Legislature, something unthinkable before 1997.
Given this void at the top of the foreign office, concerns have been expressed that Lord (Chris) Patten, the last Governor, has been trying to capitalise on the situation. If so, you would be well advised to avoid him like the plague, as his prejudices have long since corrupted his judgment. His views of Hong Kong are toxic, animated as they are by his Sinophobia, and they belong in cloud cuckoo land. In his eyes, whatever the Hong Kong authorities do is wrong, and he has become an apologist for anybody seeking to undermine the “one country, two systems” policy, however extreme their tactics.
Although you were probably working in Europe at the time, you may nonetheless recall that, during Lord Patten’s governorship, he behaved like the proverbial bull in a China shop, recklessly testing red lines and baiting Beijing. This, as his advisers, like Sir Percy Cradock, pointed out to him, was irrational, as Hong Kong’s post-1997 governance had already been determined by the Joint Declaration and the Basic Law. Although it was also impressed on him that a smooth transition was desirable, and that future good relations with Beijing, such as those now enjoyed by Portugal after the return of Macao in 1999, would be beneficial, he claimed to know better, thereby queering the pitch for everybody.
Although Lord Patten, probably correctly, imagines that his anti-China rants will stimulate the sales of his just-released “Hong Kong Diaries”, you, like everybody else, must beware of his myth making. While he can certainly talk the talk, he is bad news all round, and, insofar he has any residual value, it is only as a tool of US foreign policy. You may, moreover, agree that it is the rankest of hypocrisy for someone who was imposed on Hong Kong in 1992 without any consultation, shortly after his own Somerset electors had kicked him out, and who is now an unelected life member of the UK Parliament, to be pontificating away about democracy in Hong Kong.
Although, after you demoted Mr Raab, he became your Justice Secretary, it is a fair bet that neither he nor Ms Truss has briefed you on how Hong Kong’s greatest strength since 1997 has been its rule of law, as epitomised by its independent Judiciary. Whereas, in 2019, and thereafter, the protest movement and its armed wing sought to destabilise the Judiciary, whether by firebombing the courts or threatening individual judges and their families, the judges themselves, to their great credit, have refused to buckle. They have bravely upheld their professional values and remained true to the judicial oath that requires them to “safeguard the law and administer justice without fear or favour”.
Whereas, moreover, in the British colonial era judicial independence was simply based on convention, it is now constitutionally guaranteed by the Basic Law, and this has greatly reassured the Judiciary.
I imagine as well that neither Mr Raab nor Ms Truss has informed you that, in the World Justice Project’s Rule of Law Index 2021, Hong Kong was ranked 19th out of the 139 jurisdictions surveyed, which was no mean feat, after the insurrection of 2019-20. Although this was slightly behind the UK, on 16th, it was well ahead of, say, France, on 23rd, and the US on 27th. Indeed, Hong Kong was described as having “a strong adherence to the rule of law”, which should gratify you enormously. Still less will they have told you that, in the World Bank’s 2021 Worldwide Governance Indicators, Hong Kong was ranked 18th out of the 209 jurisdictions surveyed in the rule of law category, and the second highest in Asia. Quite clearly, these ratings illustrate the falsity of the smears being spread around by malevolent actors at your end about our Judiciary and legal system, and, if you genuinely want to understand things here, you have only to hearken unto the judges themselves.
On June 15, for example, when he reviewed the Judiciary’s situation over the past 25 years, the city’s first post-1997 Chief Justice, Andrew Li Kwok-nang, said “I can state that during this period, there has been no instance of interference with how a judge should adjudicate, and there has been no instance of interference with the process of judicial appointment”. On June 16, moreover, Canada’s highly acclaimed former Chief Justice, Beverley McLachlin, who joined the Hong Kong Court of Final Appeal (HKCFA) in 2018, declared “the Court is completely independent, and functioning in the way I was used to in Canada”, adding “there’s no governmental influence, and, if there were, I wouldn’t be there”. If, as I suspect, your ministers have concealed all this from you, the question must surely be “why so?”.
Indeed, while they fulminate away about the National Security Law in Hong Kong at every opportunity, there can be little doubt that they have not advised you that two other former British territories in the Far East, Singapore and Malaysia, have national security laws that are far tougher than Hong Kong’s. Both places, unlike Hong Kong, allow the preventive detention of suspects, each retains the death penalty, and both have abolished jury trials, while neither has adopted the International Covenant on Civil and Political Rights (ICCPR). Despite this, the likes of Truss, Raab and Patten have nothing whatever to say about them, although they bleat away endlessly about how dire things are in Hong Kong. You may agree that this, perhaps above all else, illustrates their real objective, which is to try to harm China by diminishing Hong Kong. It is, I suggest, unfortunate that you should be surrounded by individuals like these, rather than by straight-shooters, who can tell you how things really are.
Although, moreover, the National Security Law is routinely demonised in the UK by the Pattens of this world, it is actually human rights heavy. At the very outset, it stipulates that: “human rights shall be respected and protected in safeguarding national security”, and that the ICCPR, which contains the fundamental rights enjoyed by criminal suspects, is to be “protected”. This is undoubtedly why the renowned British jurist, Lord (Jonathan) Sumption, who has been a member of the HKCFA since 2019, pointed out last year that the National Security Law “guarantees human rights”, and that overseas judges like him: “serve the cause of justice better by participating in the work of Hong Kong’s courts”. If I was a betting man, I would wager that your ministers have not briefed you on any of these matters.
As you also expressed concerns over Hong Kong’s “progress and prosperity”, you will, I imagine, be delighted to know that, now that the National Security Law has restored decency and the electoral reforms have returned a functioning Legislature, the city’s economic prospects are once again healthy. Whereas, for example, the daily turnover of Hong Kong stocks since the National Security Law was enacted on June 30, 2020 has surpassed HK$150 billion, which is 60 percent higher than in the preceding twelve months, the amount of funds raised through IPOs has, since the enactment, increased by over 30 percent, in comparison with the previous two years.
Indeed, whereas the Fraser Institute adjudged Hong Kong as the World’s freest economy in 2021, the World Competitiveness Yearbook 2022, on June 15th, ranked it 5th, out of the 63 places surveyed, well ahead of the UK at 23rd. Quite clearly, if the National Security Law had not ended the mayhem, this would not have been possible, and Hong Kong would have ended up as a basket case.
This, of course, was exactly what the ex-US President, Donald Trump wanted when, without objection from you, he withdrew the city’s trading preferences, sought to ruin its economy, and imposed sanctions in 2020. Indeed, Trump also pressured you into withdrawing your support for a role for Huawei in the UK’s 5G network in 2020, so you know first-hand what the US is capable of doing, even to its partners. Hong Kong’s resilience in withstanding its antagonists, however mighty, is surely an example to the UK, now ploughing its own post-Brexit furrow, of how even very small places can stand up to global bullies.
As Hong Kong prepares for its next 25 years, its people are both confident and expectant. Confident, because its rule of law and way of life are intact, with recent challenges having been successfully overcome. Expectant, because, as a mature Chinese city wedded to the common law, huge opportunities are now opening up, most notably in the Guangdong-Hong Kong-Macao-Greater Bay Area, but also beyond. Its people are now aware of not only their rights but also their responsibilities, and they are up for the challenge. How prescient it would be if you and your government, instead of carping away mindlessly from the sidelines, got behind the city, thereby ensuring that you have a hand in its future success.
There is obviously much to be said, and I look forward to briefing you, or your successor, personally. Quite clearly, however, there are many in the UK who, for reasons of their own, want to keep you in the dark, but I take the view that you deserve to know the truth. It is, after all, in the British national interest that there should be a correct understanding of the situation in Hong Kong, and for there to be a healthier relationship with China.
Reposted from China Daily.
Grenville Cross is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.
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