Is Hong Kong Justice Still Fair and Independent in Sensitive Political Cases?

By Jerome A. Cohen

I recently read this good Reuters story by James Pomfret and Greg Torode about Monday's speech by Chief Justice Andrew Cheung at the annual opening ceremony of Hong Kong’s judicial year. The new chief justice provided necessary assurance to the community that the city’s judicial independence continued to be “a fact” despite recent momentous changes wrought by the new National Security Law (NSL) and related measures. He noted that Hong Kong court reports are full of cases making clear that Hong Kong judges continue to take a generous view of fundamental rights in their interpretations and narrowly confine restrictions on such rights.

Yet, at a meeting with the media following his speech, the CJ’s honest answers to questions posed by well-informed journalists inevitably cast doubt on his assurances. When asked to reveal the number and identities of those judges who have been cleared to decide national security cases (juries can now be prevented from deciding these important cases), the CJ reportedly responded that, while he could advise and make recommendations about which judges should be selected to handle such cases, it is the city’s chief executive (Carrie Lam) who is the designating authority under the NSL.

Of course, even if the CE, the city’s most powerful political official, now determines who shall decide the most politically sensitive judicial cases, that does not explain why the CJ cannot at least reveal to the public the number of special judges approved by the CE or their identities. Nor does it explain why consultations on this matter between the CE and the CJ have to remain secret and why, as the CJ admitted, it is not for the judiciary to answer for the criteria governing the choice of its members to handle these cases. It should also be noted that, according to the Court of Final Appeal itself, Hong Kong courts have now lost the power to make final determinations on relevant constitutional questions, as their recent decisions denying bail demonstrate.

This new reality is also an important “fact” of Hong Kong’s judicial independence. My heart goes out to Chief Justice Cheung, who has valiantly taken on an impossible task. (Full disclosure: he reportedly took my course on Chinese law almost forty years ago while a Harvard graduate student.)

Extradition and judicial independence–how are countries addressing these issues?

By Jerome A. Cohen

This article on the conversation between Wenran Jiang and former U.S. ambassador Chas Freeman makes apparent the need for a Canadian legislative inquiry into the Article 4 exemption issue. In the interview, they discuss whether Ottawa should have arrested Meng in the first place. Should Canada have released Meng after Trump openly politicized the case? Did Canada’s Executive in effect remove the political question from the Vancouver court’s jurisdiction? How was the court expected to deal with the question? What arguments did the respective counsel make regarding this question? 

I had long advocated that the court resolve the case by denying extradition on the ground that Trump had rendered it political. Were China and the US each worried about what the court would decide? Was Canada leaving the hot potato to the court, at least in the first instance, to the prejudice of the two Michaels? What is the nature of the relationship between the courts and the government in Canada regarding extradition? This must be a common problem. New Zealand has been struggling with it in the ongoing PRC request to extradite a Korean national named Kim who is charged with murder in Shanghai. And, of course, there is the unresolved effort of Taiwan to extradite the Hong Kong citizen accused of murdering his HK fiancée in Taiwan, which raises other mysterious political issues. What a great subject for comparative and international analysis!

Additionally, the struggle for “judicial independence” is an ongoing challenge in all countries I know something about, but it is varied and exists to many degrees. There is surely no equivalence, for example, between the situations in the United States and in China. The systemic, regime-imposed, incessantly articulated Communist Party control of the Chinese judiciary renders it immensely different from the American situation where there is a continuing struggle over the extent to which courts in fact comply with constitutional norms and societal expectations. Since the US has a federal system, we must take account of the differences in this respect that exist between the federal courts, which generally have a higher reputation, and at least some state courts, especially those that are subject to direct election. I just voted for some local New York City judges and noted that the candidates nominated by the Democratic Party’s primary election are running unopposed in the general election. In some parts of northern NY State, I believe Republican nomination assures election. 

Corruption is seldom encountered in our federal courts.  Lately there has been a minor scandal initiated over the revelation that some federal judges fail to recuse themselves from cases involving companies in which they own stock. Media publicity is expected to put an end to this dubious practice. Political bias, of course, is a more serious and continuously debated public problem, as controversy over Trump’s US Supreme Court appointments and Senator McConnell’s refusal to consider Obama’s last nomination highlighted. There is daily, useful analysis and argument in the media over this problem, which is raised by the flow of cases at all levels of the federal and state systems.

In China, the overt political command of the judicial system often obscures other perhaps more widespread problems of independent judicial conduct, including massive corruption, strong local protectionism and, above all, personal biases deriving from individual relationships (guanxi) that distort court decisions.

I would love to know what pressures the Canadian judge in the recent Meng extradition case felt and how she would have dealt with that very hot potato. Apparently neither China nor the US wanted to gamble on the outcome.

Should foreign judges continue to serve in Hong Kong?

By Jerome A. Cohen

Here is an important article worthy of broader attention. It was recently reported that Canada’s ex-chief justice, Beverley McLachlin, has renewed her term on the Hong Kong Court of Final Appeal. Until this past year, I thought that, on balance, it was desirable for the overseas non-permanent judges of Hong Kong’s Court of Final Appeal to cling to their cushy and limited responsibilities. But the balance appears to have shifted. Increasingly they seem mere ornaments whose largely nominal presence in major controversial cases misleads the public at home and abroad into believing that all continues to be well with the Hong Kong courts.

In assessing the wisdom of their continuing participation, one should ask questions such as: Do they take part in the new national security cases that are beginning to occupy the courts? What role did they play, for example, in Jimmy Lai’s bail case?

Canada’s Professor Alford and Lawyer Shi are surely right in regretting that former Chief Justice McLachlin renewed her appointment at this time, lending her great prestige to what must now be called the Takeover rather than the Handover of Hong Kong. Will she and her white, male overseas colleagues analyze and expose the restrictions being imposed on the Hong Kong judiciary?

There is no risk that American non-permanent overseas judges will inform the public of the true situation since the Basic Law has been interpreted to exclude Americans from selection among the “common law” judges from which this elite is chosen. “Commonwealth” has replaced “common law” in practice. Yet, building on the English experience that dates back to Lord Coke, the United States also offers useful examples of the complex political-legal struggles to establish and maintain judicial independence.

Focus on the Court of Final Appeal seems to divert attention from the more important and difficult dilemmas of the many Hong Kong judges with foreign nationality who serve on the lower courts that bear the principal burdens of coping with Beijing’s restrictions.

Bail Decisions Must Give Reasons

By Jerome A. Cohen

Here is a report on the outcome of the three days of most recent bail hearings involving the HK 47. Only 11 have been granted bail. Because of the unfairly restrictive HK rules against media reporting and commenting, we know little about the crucial details.

Why have some been granted bail and most others denied? In democratic systems judicial decisions must be based on reasons. Presumably the judge will give her reasons in a written opinion to be delivered in a few days. One hopes her opinion will really do so rather than merely list factors to be considered and then simply announce the individual decisions without explaining why the application of the various factors has led to the various outcomes. 

Moreover, why did the Government give up its opposition to bail for four of the suspects? That would be very important to know for purposes of dealing with the many other cases.

Note that those granted bail “are banned from making any speech or committing any act that MAY BE SEEN as breaching the security legislation”. “May be seen”? By whom? Police or prosecutors? Eventually the courts? The NSL is so expansive and hopelessly vague that this is an impossible standard. Moreover, does this restriction include not only “subversion” and all other possible violations of the NSL but also possible violations of Hong Kong’s pre-NSL security legislation ban such as that on “sedition”?

The result thus far in this most recent NSL prosecution is that 36 democratic activists will continue to be imprisoned for many months and perhaps years while awaiting the conclusion of their cases, even though it is quite possible, if HK judges and defense lawyers can maintain their independence, that they will eventually be acquitted! Moreover, all those who have been granted bail have been silenced and neutered for this entire period even though they too may be acquitted. 

Is it any wonder that those Hong Kongers opposed to the NSL who have not yet been prosecuted have in many – not all – cases been silenced too? Unless, of course, they have managed to flee abroad.

Hong Kong Makes a Farce of Procedural Fairness

By Jerome A. Cohen

What is taking place in Hong Kong’s Magistrates’ Court regarding bail hearings for the 47 democratic politicians is already an unthinkable travesty of justice and apparently is about to get worse.

The defendants were locked up Sunday, roughly a month earlier than scheduled, in an obvious effort to prevent them from being able to comment in public when, in a few days, the NPC imposes major changes in Hong Kong’s electoral system. Moreover, in order to try to show their eligibility for bail, some of the most prominent political figures have now felt coerced into abandoning their democratic political party and even firing their lawyers.

The unprecedented marathon, almost around-the-clock, four-day hearing makes a farce of procedural fairness. No single magistrate can fairly deal with the individual circumstances of 47 different bail applications in such a short time. The court system should never have arranged such a chaotic judicial review that has made Hong Kong’s formerly revered judicial system look like the willing instrument of the police and prosecution. Did only one magistrate have the confidence of the new NSL regime? At least five should have divided the work load and dealt with these cases in an orderly environment that did not put such strain on the magistrate as well as the abused defendants.

And now it looks as though the prosecution is seeking to persuade the magistrate NOT to reveal the bases for the bail decisions he is about to render. This would be a shocking restriction on the public’s right to know what the proceedings have been about and what the justification allegedly is for keeping these defendants locked up for at least many months to come. This dangerous and specious argument was rejected on February 18 by High Court Judge Andrea Pang for the reasons stated in her February 23 opinion in the most recent Jimmy Lai bail case. She found that the usual restrictions on informing the public do not apply, as the law makes clear, when it appears that the interests of public justice require otherwise.

It would be scandalous if in the cases of the 47, which are far more important than even the landmark Jimmy Lai litigation, the court were to conceal the reasons for its controversial decisions.

The government’s actions in this case are outrageous. On the one hand, it claims urgency and the need to keep these democratic leaders locked up immediately. On the other, it at the same time tells the court that it is a long way from completing its investigation and needs a three-month delay in further proceedings—all while the accused rot in jail awaiting trials that may well ultimately acquit them since the charge of conspiring to subvert is based on their exercise of the political rights provided by the rules regulating the affairs of the Legislative Council. Hong Kong is becoming a judicial “never never land”!

Henry Litton's Attack on HK Courts

By Jerome A. Cohen

Here is a recent attack on HK courts, by one of its most well-known retired judges. Henry Litton, formerly of the Court of Final Appeal, is a respected and able legal analyst who publicly called for the establishment of an independent commission to deal with the city’s chaos in the summer of 2019, a call that was not acted upon. Since then he has increasingly been critical of opponents of the HKG’s turn toward repression and implementation of the new NSL. Almost in tandem with former HK prosecutor Grenville Cross and former police investigator Tony Kwok, he has issued various op eds seeking to “reform” HK’s judicial system. It reminds me of the Mainland’s hoary admonitions that police, prosecutors and judges should operate like a single fist to suppress the opposition.

 This op-ed goes further than previous criticisms. It condemns the HK appellate court handling the region’s first NSL prosecution even though the court made a decision that the pro-Beijing forces deem correct! Why? Because Mr. Litton claims that the judges should not have given extensive consideration to the constitutional challenges that the President of the HK Bar Association and his colleagues launched against relevant provisions of the NSL on behalf of the accused, despite the fact that the judges ended by rejecting those challenges.

What seems to upset Litton is that the judges carefully considered and publicly commented on the arguments of defense lawyers who, he maintains, were “seeking to impeach national legislation in the regional courts.” This, rather than the lack of judicial clarity ostensibly revealed in the court’s judgment, seems to be what Litton mainly condemns. At stake is the legal power of HK courts to consider the constitutionality of a new PRC law specifically enacted for HK that cries out for invalidation in various respects. As Litton points out, the NSL itself makes clear that Beijing mistrusts the independence of HK judges, which is why so much propaganda is being mobilized to further curb their independence in various ways.

[New Article] Law's Relation to Political Power in China: A Backward Transition

By Jerome A. Cohen 

I've just uploaded on my SSRN my latest article—"Law's Relation to Political Power in China: A Backward Transition," which is slated to appear in Social Research: An International Quarterly in the Spring of 2019.

In the article, I examine China's legal progress and regress in recent years. While noting certain legislative and judicial advances, I discuss the continuing reality of the unchecked powers of the police, the plight of Chinese human rights lawyers and the newly established National Supervision Commission that significantly expands the Chinese Communist Party’s incommunicado detention system to all deemed to be government officials.  

I'm pasting the introduction below. Comments are welcome!

Law's Relation to Political Power in China: A Backward Transition

Social Research: An International Quarterly, forthcoming 2019

Jerome A. Cohen New York University School of Law

Introduction

By and large, for the past dozen years, China’s professed transition toward the rule of law has witnessed more setbacks than progress. The extent to which the exercise of governmental power should be subject to domestic and international legal restraints continues to be a matter of enormous importance. This is true in every country and in relations among countries in our increasingly interdependent world. The earthshaking impact of Donald Trump’s election to the American presidency has made the relationship of law to power as preached and practiced by the United States a virtually universal concern. Yet, as Americans and others strive to cope with this new challenge, the world is also increasingly anxious about how a rising China—with more than four times the population of the United States and almost as much economic strength—respects the “rule of law” at home and abroad.

This essay, building on the excellent analysis by Jean-Philippe Béja (Social Research: An International Quarterly, this issue) updating his earlier overview of the political situation in the Central Realm, will focus on China’s domestic legal situation. In doing so, we must be fully aware that the People’s Republic of China (PRC)—an increasingly oppressive Marxist-Leninist dictatorship—denies foreign scholars, and even its own people, the opportunities for knowledge and analysis that American freedoms of expression and transparency offer domestic and foreign observers of the United States. I regret the limitations that these restrictions impose upon my comments.

Keywords: China, rule of law, legal reforms, human rights lawyers, police powers, National Supervision Commission

China’s Chief Justice’s Extraordinary Statement: The Most Enormous Ideological Setback for a Professional Judiciary

Here is Flora Sapio’s original blog post about China’s Supreme People’s Court Chief Justice Zhou Qiang’s recent statement, which has provoked some unusual public opposition from China’s law reformers. Several aspects distinguish Zhou Qiang’s new and surprising statement.

It is much more threatening to the judicial cadres than the usual recitation about the importance of following the Party line. It focuses almost exclusively on “morality” and political reliability.  Its reference to heroic historical figures is surely bizarre and suggests that the recent investigation of the Supreme People’s Court by the Central Discipline Inspection Commission must have uncovered judges’ lack of reverence for Chairman Mao as well as their continuing desire for judicial independence from Party interference. This statement is the most enormous ideological setback for decades of halting, uneven progress toward the creation of a professional, impartial judiciary. It has already provoked some of China’s most admirable law reformers and public intellectuals to speak out in defiance, and, despite their prominence, I fear not only for their careers but also for their personal safety. 

I see Zhou’s statement as possibly necessary in order for Zhou Qiang, an enlightened and progressive Party leader,  to have his appointment renewed by the 19th Congress. There is immense dissatisfaction among many judges, especially the younger judges, over Xi Jinping’s restrictive, anti-Western legal values being imposed on them, contrary to their largely-Western-type legal education. This comes at a time when the courts are undergoing reforms designed to reduce the numbers of officials called “judges” by as much as 60% in order to make the remaining judges more of an elite, receiving greater prestige and compensation and a better reputation for competency. Many younger officials are leaving the courts, and the procuracy too, for work in law firms, business and teaching. They do not want to spend their lives applying legal principles opposed to their largely Western-type legal education.

Death sentence, sense of injustice and public opinion in China

Jia Jinglong, a villager who killed a local official after his house was demolished without proper compensation, was executed on Tuesday. This landmark case has multiple dimensions.

Jia Jinglong

The sense of injustice is spreading in China, and it is always fueled by cases that ordinary Chinese can grasp that violate their basic, widely-shared principles of fairness and humanity. This case blatantly demonstrates the inequality of the system. Another poor villager executed while well-connected murderers are often spared. Killing an official, however cruel or arbitrary his misconduct may have been, usually results in harsher punishment than killing a farmer. But much more is involved in Jia’s case. Housing demolition and its association with corruption and failure to observe prescribed acquisition procedures have sparked huge resentment and popular reactions, of course.

Moreover, there is often a denial of due process – fair criminal procedure – in this instance reportedly by not allowing competent counsel to take part in the defense in a timely manner and by denying defense counsel adequate time to prepare the defense.

In this case another aspect that should have been considered by the courts was the defendant’s mental state. Here, as in some earlier well-known cases, the accused had obviously been brooding for a long time about the unfairness of being deprived of his home without adequate compensation and, consequently, losing his anticipated marriage. Had this aspect been investigated by the court and psychiatric experts, as Chinese law makes possible, it might well have resulted in a diminished sentence. But Chinese courts are reluctant to inquire into the defendant’s mental condition if the victim was an important local official or a police officer..

There is also the broader question of the courts and public opinion. There have been many examples of bloodthirsty public opinion causing lenient courts to reverse their verdicts and there have been many cases of sympathetic public opinion successfully pressing courts to reduce harsh sentences. Sometimes the Party mobilizes the media in a preferred direction or at least allows a mass sentiment to develop. Chinese judges have sometimes discussed with foreign specialists the sentencing dilemmas confronting them and asked for advice and information about how other countries, including the U.S., deal with the problem.

This case may also add to the pressure in China for finding some effective way to allow ordinary people to have a say in the administration of justice. This problem has been important throughout East Asia - in Japan, South Korea and Taiwan, each of which has resorted to different solutions. In China’s Henan Province, the High Court at one point claimed it was introducing an American-style jury system, but that, of course, turned out to be misleading. China’s “people’s assessors” system, imported from the USSR in the ‘50s, has long been recognized as an insignificant and inadequate way to allow laymen to sit and vote with professional judges.

Finally, as the Jia case illustrates, public speech in China is, once again, being increasingly suppressed. Will people soon be afraid of even expressing themselves in private conversations, as during the Cultural Revolution?

Streaming of Chinese court trials

Xinhua just  reported that China has launched a website broadcasting court trials. Live streaming of court hearings, despite its obvious restrictions and selectivity, is a good step forward in expanding public awareness of China’s courts and of various legal principles and their application in daily life. This is part of an effort to increase popular respect for the judicial process, which has been widely mistrusted.

This welcome initiative should be understood together with the recent effort to increase the prestige of judges and prosecutors by winnowing out many official legal staff who bear the label of “judge” or “prosecutor” but who do not have the competence or seriousness to carry out the work expected. The idea is to create a judicial elite separate from the regular bureaucracy and to try to reduce the roles of corruption, “guanxi” (relationships), local protectionism and local Party and government influence upon court decisions.

Streaming will not only challenge prosecutors and judges to look and do better in action but also lawyers. It will be interesting, for example, if lawyers in the new spotlight will learn to cross-examine witnesses in court. But that will require changes in the system requiring witnesses to show up in court rather than merely give written testimony that allows them to escape cross-examination, which has often been called the greatest instrument for the discovery of truth in a legal system. 

P.S. I don’t believe the court hearing reported here ("China jails women's rights campaigner after torture in detention") was selected for live streaming!