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.)

The Positive Impact of Repression in Hong Kong

By Jerome A. Cohen

Saturday's NY Times carries an important and fascinating story by Michael Wines detailing the decision of a Florida federal judge, Mark Walker, ordering the University of Florida to stop enforcing a policy that barred six of its professors from giving expert testimony in lawsuits against the state. The judge’s ruling reportedly “accused the university of trying to silence the professors for fear that their testimony would anger state officials and legislators who control the school’s funding. Judge Walker likened that to the decision last month by Hong Kong University to remove a 25-foot sculpture marking the 1989 massacre of student protesters in Beijing’s Tiananmen Square by the Chinese military, apparently for fear of riling the authoritarian Chinese government. If the comparison distressed university officials, he wrote, ‘the solution is simple. Stop acting like your contemporaries in Hong Kong.’”

Chairman Mao reputedly once admonished us to never underestimate the power of negative examples! I don’t know where the judge got this terrific idea from – whether from his own reading, the plaintiffs’ brief or his law clerks. But this example opens up many possibilities for, as both Chinese and foreigners like to say, “turning a vice into a virtue.”

It is sad to see a major American university engaging in such repression today. It was bad enough when, sixty years ago, the University of California at Berkeley forced philosophy professor John Searles and me to cancel a program scheduled to condemn the U.S. House of Representatives Un-American Activities Committee. When we protested, the campus vice-chancellor told us the university could not afford to offend the legislature. We should have sued. Instead we both moved on to freer climes.

Hong Kong's Transformed Criminal Justice System: Instrument of Fear

Several of us were recently asked to write essays for Taiwan’s Academia Sinica on developments in Hong Kong. These will be formally published in March but, in view of the pace of events and the importance of the topic, we have been authorized to make our views available now.

HONG KONG’S TRANSFORMED CRIMINAL JUSTICE SYSTEM: INSTRUMENT OF FEAR

By Jerome A. Cohen*

Abstract

This essay demonstrates how recent, comprehensive changes in Hong Kong’s criminal justice system have transformed it into an instrument of fear that has understandably intimidated a formerly vibrant society into political silence. An intensive surveillance system now reaches every aspect of society. Aggressive criminal investigation techniques now invade formerly protected freedoms of expression. Aided by reversal of the traditional presumption in favor of bail pending trial, government now punishes people under the new National Security Law (NSL) by detaining them for months or years before cases are finally decided. Recent restrictions on Legal Aid limit prospects for independent criminal defense. Political operatives now decide whether and what types of NSL prosecutions should be brought. Trial by jury has been eliminated for major NSL offenses, and only judges who are deemed politically reliable can adjudicate such trials. Also, appellate judges are under various pressures, and constitutional issues that were formerly thought to be the exclusive province of the Hong Kong courts are now dictated by the Standing Committee of China’s National People’s Congress. Moreover, increasingly, local criminal procedures that do not fall under the NSL are nevertheless being adversely affected by the current obsession with national security. The NSL era’s transformation of criminal justice has effectively suppressed popular protests and democratic practices.

KEYWORDS: national security, surveillance, criminal justice, investigation, bail, jury, defense lawyers, prosecutors, judges, Constitutional Law, human rights.

Full text (PDF): http://publication.iias.sinica.edu.tw/60105122.pdf.

Is this a crackdown on Hong Kong civil society or simply justifiable rule of law?

By Jerome A. Cohen

Here is the latest disturbing news from Hong Kong. After refusing a police demand for information, four members of the group that plans the city’s annual Tiananmen Massacre vigil were arrested. Note in the HKFP's story Carrie Lam's defense of this attack. It is not, she claims, a crackdown on civil society since, by definition, civil society does not include any organization that refuses to comply with the interpretation of "the law" asserted by the government and the police. I heard a similar defense from the deans of Beijing's five major law schools when in 1992 they came to my hotel to protest a speech I had just made to the Foreign Correspondents Club condemning the PRC courts for becoming an instrument for suppressing the Chinese people. How could "a friend of China" make such an outrageous charge, they asked, since "counterrevolutionaries" were not within the definition of "the people"!

This latest HK case will accelerate the pressures on both the HK Bar and the courts. Ms. Chow, one of the people arrested, is a barrister who today was scheduled to defend one of the 47 human rights activists already being prosecuted for violating the new National Security Law. Her case and that of her newly-arrested colleagues raises critical legal issues. I assume that some fellow litigating lawyers, undeterred by the recent submission to political pressures of the HK Law Society composed of office lawyers, will present, as usual, a vigorous and able defense. What a challenge for the beleaguered judges!

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.

Johannes Chan: Hong Kong University's Chilling Message

By Jerome A. Cohen

Here is the recent news about Johannes Chan’s departure from Hong Kong University. He is a wonderful scholar and long-term, courageous critic of the PRC’s increasing repression in Hong Kong. Before, during, and after his distinguished service as the eminent Hong Kong University Law School’s dean, his published analyses have provided invaluable insights into Beijing’s manipulations of the Joint Declaration, the Basic Law and the former UK colony’s traditional legal system. At 62, he is at the top of his form. Yet the university’s political leaders have now diminished his status to, at best, that of a part-time adjunct lecturer. They previously rejected the formal recommendation that, after his deanship, he would become one of the university’s most prominent administrators. How far the discrimination against him will go is hard to say. Some time ago he was even denied entry into Macao on national security grounds.

Professor Chan would grace the faculty of any law school anywhere and will undoubtedly have opportunities to teach in many common law countries, as many prematurely “retired” HKU professors have done. I have no idea what his plans might be but hope that he will not leave  Hong Kong unless, like some other invaluable human rights advocates there, he believes his personal security is threatened by government prosecution. Hong Kong’s embattled barristers will surely welcome his newly-liberated participation in their efforts to slow the process of dictatorial controls.

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.

Some Hong Kong National Security Bail Decisions Are Delayed

By Jerome A. Cohen

Here is an SCMP report on this morning’s bail hearing before the Hong Kong High Court. Several items are worth noting.

In rejecting the request of one defense lawyer to grant interim bail to his client pending conclusion of the Court’s week-long review of the Chief Magistrate’s decision to grant bail to a minority of the 47 detained democratic figures, Judge Toh is quoted as saying: “This has to be done properly. Things done in haste are sometimes when mistakes are made.” Was this not a so subtle criticism of the lower court’s handling of the original applications of the entire 47 suspects? Or simply the statement of a truism that should obviously have been recognized by the lower court before deciding to inflict a black eye on Hong Kong justice?

Did the prosecution offer any clues about why it decided, sua sponte, not to pursue its appeal of the granting of bail to four of the fifteen suspects by the lower court? This is an essential point if the public is to glean any guidance from these events about the government’s interpretation of how the National Security Law is to be applied. Why were these four suspects belatedly favored by the prosecution? If defendants and their lawyers can know this, then they will be better able to argue for bail in other cases.

And what about the appeals from denial of bail by the twenty-five suspects whose cases the media seems to ignore?

I hope that, after taking a week to consider the arguments on both sides and conducting further hearings, Judge Toh will not only issue written decisions but also detail her reasoning and how it applies to her decision in each case. This would improve upon the performance of Judge Pang in denying Jimmy Lai’s most recent request for bail review.