Threats to judges an affront to rule of law that shames US

May 16, 2023
Judge holding gavel in court courtroom at trial

On May 12, the former president of the UN Security Council, Kishore Mahbubani, warned Hong Kong that it faced ongoing turbulence amidst global tensions. It should expect to be “kicked around like a football” over the next decade, although this has already started.

Since 2020, the US has sought to harm Hong Kong in various ways. As it is a financial city and global trading centre, every effort has been made to deprive it of its lifeblood, albeit unsuccessfully. Although the former president, Donald Trump, revoked the city’s trade preferences, clamped down on its exports, and declared its financial markets “will go to hell,” it has survived. This was attributable not only to its resilience, but also because many American companies have remained committed to Hong Kong.

In frustration, Trump’s successor, Joe Biden, issued the “Hong Kong Business Advisory” in 2021, warning US companies of the dangers of doing business in Hong Kong. To his chagrin, however, this was not taken seriously by the business world, which understands the local situation. The American Chamber of Commerce in Hong Kong promptly declared that “the city has a crucial role to play as an international business hub,” and so it is proving.

This has incensed China’s antagonists in the US Congress, including Representative Christopher H Smith and Senator Jeff Merkley, the chair and co-chair, respectively, of the US Congressional-Executive Commission on China (CECC). Earlier this year, they proposed the Hong Kong Economic and Trade Office (HKETO) Certification Act, which requires the US to reassess the official status of the three HKETOs in the US. They imagine that, if they can shut the city’s trade offices, it will, as Trump and Biden wanted, harm its economy (and also, inevitably, its people). It is no surprise that the UK-based Hong Kong Watch, the anti-China propaganda outfit run by the serial fantasist, Benedict Rogers, is not only supporting their move but seeking to internationalise it.

Although the US efforts to harm Hong Kong’s economy have come to nothing, the CECC has an alternative strategy. It knows that the key to the city’s success has always been the rule of law, and they reason that the best way of undermining it is to intimidate its legal personnel. After all, Hong Kong’s judiciary is one of the most professional in the Asia-Pacific Region, and its jurists are not only of the highest quality but also fiercely independent.

The Hong Kong Court of Final Appeal (HKCFA), for example, apart from its distinguished local judges, also comprises jurists of international stature. They include two former chief justices of Australia (French and Gleeson), the former chief justice of Canada (McLachlin), and two former presidents of the UK Supreme Court (Phillips and Neuberger). And, so long as the city’s legal arrangements are overseen by judicial heavyweights of this caliber, it is very difficult for the likes of the CECC and Hong Kong Watch to claim that the rule of law is on its last legs, which is why they want to frighten them and, other judges, away.

On May 12, therefore, the CECC called for 29 of Hong Kong’s judges to be sanctioned. They have all been involved in handling national security cases, whether at trial or on appeal, and they include the chief justice, Andrew Cheung Kui-nung, and at least three of his fellow HKCFA judges. Although the US has tried to demonise it, the city’s national security legislation not only saved the city after the insurrection of 2019-20, but is also human rights heavy (it incorporates the ICCPR), and is less draconian than the laws of many other places, including neighbouring common law jurisdictions like Brunei, Malaysia and Singapore (none of which has signed up to the ICCPR).

The US itself has a battery of stringent national security laws, covering every type of activity. The police enjoy wide investigative powers, the cards are invariably stacked against suspects, and individual rights count for little (as of February, 2023, there were still 31 detainees being held without trial in Guantanamo Bay, Cuba). The US, moreover, is currently using the extra-territorial reach of its Espionage Act 1917 to hound the hapless Wikileaks founder, Julian Assange, who, at its request, is rotting in London’s notorious Belmarsh prison, fighting extradition. Assange’s only “crime” is to have exposed, to Washington’s embarrassment, grave malfeasance at the heart of the US government, and the British courts will hopefully liberate him very soon.

Although the CECC claimed that the judges it wants to victimise have weakened “Hong Kong’s venerated rule of law and independent judiciary and (are) arbitrarily jailing over a thousand political prisoners,” this is a foul calumny, cooked up by zealots with no regard for the truth. The so-called “political prisoners” include arsonists, rioters and thugs convicted of unlawful wounding and assault (many of whom have confessed their crimes). The targeted judges have ensured, like their US counterparts, that national security cases are fairly handled, that legal niceties are observed, that suspects are only convicted if prosecutors have proved their guilt beyond reasonable doubt, and that their appeals are resolved on the basis of legal principles.

The CECC’s attempt, therefore, to intimidate the judges is an outrage, which brings disgrace to the US Congress, and Biden will hopefully trash its report.

As, moreover, some of the national security cases the CECC has highlighted are still before the courts, its threats to the judges handling them are tantamount to an attempt to pervert the course of public justice, and this is something the police force will wish to consider. Any attempts to interfere with judges is abhorrent throughout the common law world, of which both Hong Kong and the US are members, and those responsible must be called out, regardless of their status. Judicial independence is always a fragile commodity, and those who imperil it must understand they are not above the law.

As some of the judges threatened are British nationals, the UK’s Consul General in Hong Kong, Brian Davidson, will hopefully have taken note. He should urge his foreign secretary, James Cleverly, not only to come out in solidarity with his fellow countrymen, but also to protest to the US over a squalid attempt to intimidate professional judges. As Cleverly always likes pontificating about British “values,” let him now put his money where his mouth is, and condemn this gross affront to the legal order.

However despicable, this is by no means the only occasion on which the CECC has sought to interfere with Hong Kong’s criminal justice system. In 2022, it tried to derail the criminal proceedings against the so-called “Hong Kong 47” (calling them “champions of democracy”), and called on the government to drop the charges they faced (over a subversive plot to paralyse the legislature and provoke a constitutional crisis). This call, of course, was entirely mischievous, and 31 of the suspects have since confessed to their guilt, demonstrating the validity of the charges brought against them.

The CECC, moreover, called on Biden last year to sanction six named prosecutors, “among others.” This was not only intimidatory of the individuals concerned, but also a frontal assault on the “international rules-based order,” by which the US always claims to set such store. Indeed, at the 8th UN Congress on the Prevention of Crime and the Treatment of Offenders, in 1990, the “Havana Declaration” was adopted, and this stipulates that “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”.

It appears that Biden, to his credit, was aware of the “Havana Declaration,” and he disregarded the CECC’s request. It does, however, beggar belief that a congressional body could produce something so contemptuous of the rule of law, but the nature of the beast is revelatory,

The CECC was established in 2000, with a mandate to monitor China’s compliance with international human rights standards, to encourage the development of the rule of law in the PRC, and to establish and maintain a list of victims of human rights abuses in China. It comprises nine senators, nine congressmen and five senior administration officials appointed by the president. After a pretence of objectivity in its early years, it has been gradually taken over by propagandists, bent on using it to project anti-Beijing stances and promote initiatives inimical to China.

In February, 2020, for example, Smith and Merkley were among the CECC members who nominated the so-called “pro-democracy movement of Hong Kong” for the Nobel Peace Prize 2020. Their stunt, however, went nowhere, undoubtedly because of the violence with which the movement will forever be associated among objective observers.

In February, 2023, moreover, Smith and Merkley nominated six individuals from Hong Kong for the Nobel Peace Prize, including Jimmy Lai Chee-ying, a convicted fraudster, and Joshua Wong Chi-fung, who was convicted of an unlawful assembly involving violence that injured ten victims, one seriously. Although, as in 2020, they are trying again to pull the wool over the eyes of the awards committee, with talk of the nominees having acted “peacefully,” everybody in Oslo now knows what they are about.

The CECC also rejoices in providing platforms to every wacko with something bad to say about China, however irrational. In its hearings on May 11, for example, it welcomed assorted malcontents, including Jimmy Lai’s son, Sebastien. He claimed it is unsafe to conduct business in Hong Kong, which, if nothing else, showed he had read Biden’s business advisory.

It also platformed Anna Kwok (Guo Fengyi), executive director of the China-hostile Hong Kong Democracy Council (an affiliate of Rogers’ Hong Kong Watch), and she “implored” the administration to sanction Hong Kong’s judges and prosecutors.

The CECC even heard from the US propagandist, Brian Kern, who calls himself a “writer, researcher and activist,” which was really scraping the bottom of the barrel. Although ultimately exposed by Nury Vittachi as a fake, Kern it was who, during the insurrection, hid his American voice behind a Chinese persona (calling himself “Kong Tsung-gan”), and regularly tried to stir things up. During his rambling testimony, he urged his listeners, “don’t allow the US-sanctioned Chief Executive John Lee to attend the APEC summit in San Francisco in November, as he says he would like to do,” which must have titillated Smith and Merkley no end.

Once the hearings concluded, Smith told Voice of America, “We must further sanction judges, prosecutors, and other individuals for their egregious misuse of this national security law, which is already openly condoning incarceration and persecution,” thereby echoing suggestions first made to the CECC last year.

In 2022, after the disgraced lawyer, Samuel Bickett, was deported from Hong Kong, having been imprisoned for assaulting a police officer (and having lost his appeals), he was eagerly welcomed by the CECC. He duly raised the prospect of sanctioning not only Hong Kong’s prosecutors and policemen but also its judges (who had seen through him when he contested his guilt). He claimed “there is simply no question that some judges have abandoned judicial independence, including the Chief Justice and the known National Security Law judges.”

Although Bickett’s proposal was so egregious that observers believed that not even the CECC would rise to the bait, it has now, to its eternal shame (and with the urgings of Anna Kwok), embraced it, once again in violation of international law.

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 in Hong Kong, by the Basic Law’s Art. 85), and that it is “the duty of all governmental and other institutions to respect and observe the independence of the judiciary.” Although the CECC may be happy to trample this sacred principle underfoot, Joe Biden, hopefully, will have greater respect for international norms.

Indeed, the CECC’s proposal will be repugnant to everybody who values basic decencies, let alone the “international rules-based order.” The notion that independent judges, who have sworn to “administer justice without fear or favor,” should be targeted for dealing with cases according to law must be globally condemned (and the UK’s voice will hopefully be among the loudest).

The International Association of Judges (IAJ), which focuses on judicial independence as a guarantee of human rights, should take the lead in denouncing the CECC, not least because threats to judges in one jurisdiction can so easily escalate elsewhere if the culprits are not stopped in their tracks.

As Mahbubani explained, Hong Kong may be kicked around again in future, but it will always remain true to itself. Its people, whether judges, prosecutors, officials or citizens, know how to look after themselves, and will not be pushed around. Although the US loves trumpeting its “exceptionalism,” this counts for nothing when it seeks, for political reasons, to subvert the rule of law elsewhere. As the former US president, Theodore Roosevelt, once noted, “Knowing what’s right doesn’t mean much unless you do what’s right.”

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