A disturbing report about a ”national security court” in Hong Kong

By Jerome A. Cohen

Here is a disturbing report that is more than imaginative speculation. Hong Kong’s Secretary for Justice is expanding the effort of Hong Kong elite to prepare local and world public opinion to accept a new and special ”national security court” in Hong Kong as part of the forthcoming NPCSC legislation.

The CCP makes do without one in the Mainland, of course, since the Party controls all courts there. But Hong Kong’s common law system presents distinct challenges that are apparently deemed to require a distinct response. Perhaps experts informed about the secret and widely-criticized operations of the United States Foreign Intelligence Surveillance Court should be asked to advise the NPCSC or, better yet, comment in public. The FISA court oversees requests from federal law enforcement and intelligence agencies for surveillance warrants to secretly monitor alleged foreign spies inside the United States.

Will the HK court operate as secretly and compliantly as the FISA court in approving electronic monitoring, search and seizure, arrest and other sanctions? And, if foreign judges are allowed to participate in such a distinctive and worrisome court, how will they be selected and in what circumstances will they function?

China, Hong Kong and June 4th

By Jerome A. Cohen

Today Hong Kong police, citing the need to enforce social-distancing rules, rejected permission for the annual June 4th vigil, for the first time in 30 years. In a governmental system where too little is transparent, one thing is transparent — the excuse for the June 4th ban is not credible. The Hong Kong Government and the Central Government plainly do not want to give Hong Kongers the opportunity to express themselves about either June 4th, 1989 or June 4th, 2020.

Will Hong Kongers be able to hold the vigil next year? A year is an eternity in politics, and predictions are hazardous. Yet, unless there is an unexpected change in leadership in Beijing, it surely seems likely, especially in light of the forthcoming legislation of the Standing Committee of the National People’s Congress (NPC) and the recent NPC Decision, that Hong Kong might follow Macao in succumbing to the Amnesia that has long been forced upon the Mainland.

Such amnesia is pernicious. Mankind lives by symbols, and they often invoke the supreme sacrifice of martyrs to admired causes and revered values. Just as the Chinese Communist Party has rung the changes on the “century of humiliation” that preceded its seizure of power, we should not forget one of the greatest tragedies of what will soon be the century of humiliation that the CCP has been inflicting upon freedoms of expression and protections against arbitrary punishments for one-fifth of humanity.

Of course, it is not appropriate for an arm-chair observer far away to tell the people of Hong Kong what to do in their crisis. Yet, if it were still a free society, I would say “Let a Hundred Flowers Bloom!” Being an optimist, I hope that those who choose to stay and the majority who cannot leave will, even at this stage, find a way to make an imaginative, record-breaking, totally peaceful protest against their impending fate.

I also hope that the city’s unofficial elite, who until now have been paralyzed like deer in the headlights, will finally come together with positive, concrete proposals that might begin to restore public confidence and consensus and delay or moderate the anticipated, feared legislation of the NPC Standing Committee.

The Party Central Political-Legal Affairs Commission’s comments on Hong Kong

By Jerome A. Cohen

Following the surprise public pledge of China’s Ministry of Public Security (MPS) to “fully direct and support Hong Kong police” to stop violence and chaos, which I commented on earlier in my blog, the Party Central Political-Legal Affairs Commission (Party PLC) announced that it’s very necessary for national security agencies to establish institutions in Hong Kong.

I was asked why the Party PLC makes a statement on Hong Kong. The Party PLC controls the MPS, the Ministry of State Security (MSS) and other government security agencies. Since the MPS has announced that it will “direct” the Hong Kong police, the Party PLC will in fact be indirectly directing the Hong Kong police, if it does not already do so.

The Central Party authorities undoubtedly also influence the Hong Kong Government in other respects, not only via the Central Government Liaison Office and the Ministry of Foreign Affairs Office in Hong Kong but also through less public and official channels, including Party channels.

This influence inevitably reaches the Department of Justice and its Director of Public Prosecutions, which is where the decisions are made to prosecute alleged offenders on the basis of evidence produced by the police. This evidence will soon openly include information produced by the national security agencies, which have until now been quietly cooperating with the Hong Kong police.

This in no way formally impinges upon the independence or jurisdiction of the Hong Kong courts. I have seen no evidence of Party infiltration of the Hong Kong courts or Hong Kong Government interference with the courts. Of course, there is need for further investigation and analysis of the meaning of “interference”. In every legal system, and that of Colonial Hong Kong was no exception as I know from personal experience dating from 1963, courts operate within their particular political, social and economic as well as legal contexts, and judges, individually and collectively, are not unaware of the local context or devoid of personal relationships and ambitions. In particular, it will be interesting to learn, if we can, whether MPS or MSS agents or, much more likely their intermediaries, will attempt to contact Hong Kong judges. Representatives of the security agencies are not likely to issue Hong Kong judges the “invitations to tea” so dreaded on the Mainland, but don’t rule out amiable dinners with mutual friends!  

China’s Ministry of Public Security to “fully direct and support Hong Kong police”

By Jerome A. Cohen

Here’s a statement on May 29 by the Ministry of Public Security (MPS) vowing to “fully direct and support Hong Kong police” to stop violence and chaos. The timing is fascinating. At a time when some pro-Beijing elite in Hong Kong are seeking to assure the public that the establishment of national security organs in Hong Kong has minimal significance and that their offices there will only play a modest, quiet role similar to that of the Ministry of Foreign Affairs office, why does the MPS make a statement that, at least in the minds of millions, will maximize anxiety about the forthcoming national security legislation by the National People’s Congress Standing Committee?

To be sure, other millions in Hong Kong may feel greater comfort at the prospect of the notoriously efficient MPS directing the Hong Kong police and thereby enhancing prospects for suppressing violence, vandalism and even peaceful mass protests, but they are not the ones raising international alarms in opposition to the forthcoming legislation.

At a time when the forthcoming legislation is being finalized, is this a move by the MPS to assert its preeminent role in controlling Hong Kong’s security, upstaging the Ministry of State Security (MSS) that the non-Mainland media often assumes will play a dominant role? The two major PRC secret police institutions often have had difficulties sorting out their respective responsibilities on the Mainland where foreign and HK elements are involved. Although generally receiving less media attention, the “guobao”, national security division, of the MPS has seemed ever present in restricting and punishing the human rights activists and lawyers I have been involved with over the years, not the MSS. But perhaps that is because the MSS usually operates more unobtrusively.

Can the people of Hong Kong gain comfort from this MPS announcement?

My critique of an important pro-Beijing legal endorsement of the NPC draft Decision on Hong Kong

By Jerome A. Cohen

Here is a passionate legal endorsement of the forthcoming NPC Decision and consequent NPC Standing Committee legislation by Grenville Cross, one of the ablest pro-Beijing lawyers in Hong Kong. His orientation is that of the former government prosecutor that he was, rather than that of a defense counsel or neutral observer. CGTN, which is controlled by the Chinese Communist Party, notes that the opinions of Mr. Cross do not “necessarily” reflect its own. It identifies him as a law professor but fails to state where he teaches.

As in some of his previous relevant op eds, Mr. Cross focuses on stamping out violence and threats to public order and national security but seems much less concerned about the impact that such efforts can have on freedoms of expression. For example, I know what it means to use force to “disestablish, intimidate or overthrow the central government” but I don’t know what it means to criminalize activities of a non-forceful nature that oppose the central government. What “other serious criminal means”, i.e., other than force, does he (and the central government) have in mind?

A similar question arises regarding his enthusiasm for punishing support for HK’s secession from the PRC.

Also very troublesome is his belief that “it is also necessary to criminalize organizing or supporting the activities of any organization proscribed on national security grounds, including organizations affiliated with mainland bodies which have been banned by the central government for security reasons .” This is hardly a narrow definition of “criminal activity”. It could easily punish Hong Kong people for going to a protest meeting or march sponsored by a Hong Kong human rights organization if that organization has been cooperating with a Mainland organization that has been arbitrarily banned by the PRC, which often happens.

In the eyes of Mr. Cross, “all right-thinking people now recognize” that such prosecutions would guarantee full protection and a safe future to Hong Kong’s people. He apparently only knows “right-thinking people”, not “rights-thinking people”! This Cross is too much to bear!

What should the UK do in response to China’s distortion of the Sino-British Joint Declaration on Hong Kong?

By Jerome A. Cohen

Here’s a strong piece from Chris Patten in the Financial Times. It supports some of the suggestions that have been presented in the past few days and mentions the forthcoming G-7 meeting.

But I am disappointed that Chris does not spell out what the G-7, which I mentioned the other day in my blog, should actually do. In response to my blog, a brilliant European scholar has asked whether the G-7 might invite Taiwan to attend as an observer. Too provocative to Beijing? Too dangerous for Taiwan? After the unfair exclusion of Taiwan from the recent World Health Assembly (WHA), observer status at the G-7 would be a nice touch. Even if G-7 does not customarily invite observers, it surely can, and such an innovation would add emphasis to the importance of the invitation. 

Moreover, Patten is in a good position to urge some dramatic diplomatic responses that the UK should independently make in view of the PRC’s newest distortion of the Sino-British Joint Declaration.

Even if a UK request for bilateral discussions with Beijing to correct its distortion of the treaty is scorned, even if a UK effort to take the issues of treaty interpretation to the International Court of Justice is certain to be rejected by the PRC, these measures should be visibly attempted in order to focus world attention on what is happening.

My take on Beijing’s draft Decision on Hong Kong’s national security legislation

By Jerome A. Cohen

1. What may be driving Beijing’s draft Decision?

For the past five years, perhaps because I focus on Beijing’s domestic repression, I have inevitably accentuated the negative in appraising assessments of the PRC’s rising power. The other day I wrote that the Party’s new NPC action to authorize operation of its secret police in Hong Kong is an act of desperation. But I would not characterize it as foolhardy, as have some.

The situation in Hong Kong, from Beijing’s viewpoint, was steadily getting worse, despite the pause in protests occasioned by Covid-19. If allowed to fester without any attempt to suppress it, prospects for the autumn promised to see Hong Kong move further out of PRC control. Unless something was done, democratic politicians were likely to win the September Leg Co election. Measures taken to suspend or postpone the election or to again prevent popular candidates from seeking election or taking office would be sure to inspire huge crowds to reenter the streets if, as appears likely, the virus no longer inhibits public protests by then. Even if pro-Beijing politicians won the election and continued to control Leg Co, they could not be counted on to enact Article 23 legislation, as long experience has demonstrated. Bold central action now, while fear of the virus keeps people at home, might well be the least unfavorable option open to the leadership.

What Beijing has done is to reverse last summer’s humiliating defeat over its failure to have Hong Kong enact extradition/rendition measures that would have transferred some people in Hong Kong to the Mainland’s system of arbitrary detention and criminal injustice. It has done so by taking the Mainland’s system of arbitrary detention and criminal injustice to all of Hong Kong! Article 4 of the draft NPC Decision promises the establishment in Hong Kong by “relevant national security organs” of “agencies” that will improve “enforcement mechanisms” to guarantee national security in terms that the Ministry of Public Security and the Ministry of National Security have made well-known throughout the rest of China. The “final solution”, to invoke a sinister Hitlerian term, is the acceleration of Hong Kong’s transformation into “another Chinese city” long before 2047. This is already proving to be a costly gamble for Beijing, but nothing ventured, nothing gained!

2.  What do we know about the process regarding the draft Decision?

Some interesting relevant tidbits have emerged in recent hours. Apparently the law or laws that the Standing Committee is responsible for drafting in accordance with the not yet approved Decision are well under way.

But has the Basic Law Committee that was established to advise the Standing Committee already been consulted about the text? Prof. Albert Chen of Hong Kong University Law School, a brilliant scholar who has been a member of the Basic Law Committee since its inception, has been quoted in the press as predicting that the anticipated legislation will have broader scope than Article 23 and has appropriately cautioned against the danger that the text may easily be expanded to suppress “political opponents, dissidents, media, educators, intellectuals and so on”. The draft Decision reportedly came as a surprise to him, and I have seen no indication that the Basic Law Committee has yet been convened.

Various pro-Beijing Hong Kong political figures have recently spoken out with ostensible knowledge of the contemplated legislation, but with widely varying predictions of what offenses it will cover. Yet, like the Politburo leader responsible for Hong Kong affairs, they offer assurances that the contemplated legislation will be surgically applied to affect only its supposedly circumscribed targets, allegedly only a small group.

3.  What are the legal and human rights implications?

Here’s an excellent analysis from the NPC Observer of the Draft NPC Decision on Hong Kong. It highlights the serious legal challenges that the draft Decision presents to a conventional interpretation of the Basic Law and also the anticipated rationalizations for overcoming them, at least to the satisfaction of pro-Beijing advocates. In the end, it concludes, as I did in a brief earlier blog, that, given the structure of the PRC constitutional/legal system and the provisions of the Basic Law, the NPC Standing Committee has the power to say that the law is whatever it wishes it to be. So much for the protections supposedly guaranteed by PRC domestic law, including its reign over Hong Kong!

This does not relieve the central government and the Party of charges that the Decision and the legislation will violate the PRC’s obligations under the 1984 UK-PRC Joint Declaration on Hong Kong, including its pledge that Hong Kong will continue to be protected by the International Covenant on Civil and Political Rights (ICCPR) until the Joint Declaration expires in 2047. Nor does it free Beijing from charges that the Decision and legislation may result in violations of the PRC’s broader international human rights obligations.

Apparently to provide assurance that the agents of the Ministry of National Security and the Ministry of Public Security who will now be authorized to openly operate in Hong Kong will not run amok and usurp the role of the Hong Kong police, it has been suggested that the Hong Kong government may revive the Special Branch unit of the local police that was abolished before the 1997 Handover by the UK to the PRC. The vague language of the draft Decision foreshadows this.

Knowledgeable observers will take such assurances for what they are worth.

4.  What is to be done?

What is to be done in response to Beijing’s sudden mortal wound to Hong Kong’s promised “high degree of autonomy”? People should read this excellent statement by Human Rights in China and its very able executive director, my NYU Law School colleague Professor Sharon Hom. It provides the best answer to date. This should stimulate further creative thinking. For example, an effort could be made to cancel or at least postpone the 2020 Olympics in China.

Saturday’s Washington Post editorial suggests that selective resort to certain U.S. sanctions made available by existing American legislation would seem desirable and that the sanctions that would be authorized by a new proposal to be considered by the Senate would add to the possibilities without invoking the nuclear option of entirely eliminating Hong Kong’s special trade and investment status. As the Magnitsky Act experience shows, however, such sanctions are never invoked against the one PRC official we all know should be the target — the great dictator.

But political and diplomatic measures can be taken at the G-7 and other major forums. Despite the PRC’s veto in the Security Council, even U.N. meetings and those of other international institutions can become occasions for multilateral, not merely unilateral, denunciations. 

Surely, Hong Kong’s protection under the ICCPR should be brought into play. But all this requires effective allied cooperation and, above all, vigorous activism on the part of the UK, which is the treaty partner whose expectations are being violated by the PRC.  

Beijing’s agenda to enact national security legislation governing Hong Kong: some initial thoughts

By Jerome A. Cohen

Obviously the current plan to enact national security legislation governing Hong Kong is not Beijing’s preferred way but is a mark of desperation. If it had been attempted much earlier in the post-’97 period, especially before the Article 23 fiasco in Hong Kong in 2003, it might have passed legal muster without creating as much consternation as it does now.

At this time, however, coming in the wake of the failures to enact relevant security legislation via Article 23 and the inability of LegCo to do so in the future on its own, Beijing’s current move certainly looks like a clever trick that inevitably inspires even greater popular distrust than ever in the NPC Standing Committee’s interpretations of the Basic Law.

The NPC Standing Committee will undoubtedly prevail in technical PRC legal terms, given the wording and structure of the Basic Law, the provisions for its interpretation and the way those provisions have been applied in recent years. But the political costs to the Central Government and the people of Hong Kong will be very high.

This will not be the formal end of “One Country Two Systems,” but it is surely a mortal wound to the living, meaningful system that many had been misled into hoping for. The people of Hong Kong should prepare to cope with the varieties of arbitrary detention that have been inflicted on compatriots elsewhere in China who have tried to exercise freedoms of expression. The Ministry of Public Security and the Ministry of National Security will no longer have to operate secretly in the SAR. Both will soon have agencies formally and openly established there. Their promised “enforcement mechanisms” can be relied upon to eliminate dissent in Hong Kong almost as efficiently as they have done on the Mainland.

There are many ways that the United States, the UK and other democratic countries can strongly react to Beijing’s latest legal legerdemain. Perhaps Washington will invoke some aspects of existing federal legislation relating to Hong Kong, but I hope it does not act in ways that will penalize Hong Kong’s already long-suffering people rather than the regime that increasingly dictates to them.

How to read the 4/18 mass arrests in Hong Kong

By Jerome A. Cohen

Saturday’s mass arrests in Hong Kong, following the bold assertion by Beijing’s Liaison Office of comprehensive power over the PRC’s Special Administrative Region, represent a stunning advance toward the Chinese Government’s demolition of One Country, Two Systems in fact, if not in name. 

The people of Hong Kong are very unlikely to accept this further erosion of “the high degree of autonomy” that they were promised when the PRC and the UK concluded the Joint Declaration on Hong Kong’s future in 1984 and China enacted the Basic Law for Hong Kong in 1990. 

This week’s actions may well be an attempt by Beijing to provoke a broad popular reaction that will then provide an excuse not only to finally bulldoze success passing controversial national security legislation in HK under Basic Law Article 23, but also to call off the crucial September election scheduled for HK’s Legislative Council. Indeed, another Art. 23 campaign is sure to elicit an even stronger reaction than we saw last year in response to PRC efforts to pass legislation authorizing extradition/rendition of alleged criminal suspects for “justice” on the Mainland. Unless, of course, HKG restrictions regarding Covid-19 inhibit people from going into the streets, which is what the PRC is surely counting on. 

Some observers have wisely advised the public to keep cool and remain patient, if possible, and virus restrictions may make this probable, by and large. Whether or not there is street reaction, there should be no letup, of course, in exposing the Chinese Communist Party’s nefarious actions. The Party undoubtedly has other actions up its sleeve in its effort to squelch Hong Kong’s striving for democracy.

With all the pro-HKG talk about the importance of equality before the law in the hope of justifying the mass prosecution of the SAR’s traditional democratic figures, I believe the defense will emphasize the inequality demonstrated in singling out these 15 leaders while not prosecuting the hordes of others who also technically violated the anti-protest regulations in question. The prosecution will have to show that the 15 each not only took part but also led or helped organize last year’s protests and that others not prosecuted do not share that responsibility. These criminal trials will not be short and simple, and one should not underestimate the preparation and competence of the HK Department of Justice professionals, however reluctant some of them may be to pursue these cases. 

Civil war in Hong Kong? The mass arrests of April 18

By Jerome A. Cohen

The PRC is desperate to quell Hong Kong’s opposition and therefore willing to boldly gamble on this astonishing attack. I think today’s attack will reignite civil war in Hong Kong, despite Covid-19 restrictions, enhance opposition to the forthcoming PRC renewed effort to enact Article 23 repressive “national security” legislation in Hong Kong, and lead to the cancellation of the September LegCo election unless the democratic forces see the trap that has been set for them and act in ways that cannot be seen to justify cancellation of the election. A tall order in the face of the current provocation, which is only the most recent of many recent ones.

If the election is held, the opposition should win.

Chinese Government’s Injustice against Hong Kong Book Seller Gui Minhai

By Jerome A. Cohen 

Hong Kong book seller Gui Minhai has just been sentenced to ten years in prison. China’s official press release concerning Gui’s harsh sentence claimed that Gui “applied to restore PRC nationality in 2018.” This alleged application to regain PRC nationality while in grievously coercive PRC incommunicado detention cannot possibly be deemed legitimate in international law. The PRC press release’s implication, of course, is that his PRC nationality has been restored and that this automatically cancelled his Swedish nationality, at least in PRC eyes. But Sweden’s Ministry of Foreign Affairs confirmed that Gui is still a Swedish citizen because “Swedish citizenship can only be renounced after an examination and a decision by the Swedish Migration Agency.”

We do not have access to a complete record of PRC police/judicial/diplomatic practice, of course, but I am confident that similar types of abuse have taken place in the case of other foreign nationals who had previously abandoned PRC nationality. However, although my memory may dim, I do not recall the PRC so brazenly and briefly alluding to the issue in a public statement.

Of course, if the PRC would publish the abominable court decisions that purport to justify criminal convictions such as Gui’s, we might learn a bit more. Unfortunately, although the PRC now publishes millions of other court judgments, it still — understandably — often refuses to reveal court decisions in “sensitive” matters where universally respected norms of justice have been violated.

Gui’s continuing mistreatment should be deemed to violate both PRC domestic and international law. The Swedish Government, other nations and the world community should not allow this matter to rest, and it should be of especial interest to the many ethnic Chinese who enjoy non-PRC nationalities, particularly those who formerly were PRC nationals.

Freedom from Arbitrary Detention in Asia: Lessons from China, Taiwan and Hong Kong

By Jerome A. Cohen

In 2018 I co-authored an article with my colleague Yu-Jie Chen on "Freedom from Arbitrary Detention in Asia: Lessons from China, Taiwan and Hong Kong" (in Oxford Handbook of Constitutional Law in Asia, David Law, Holning Lau and Alex Schwartz eds., forthcoming). In light of the Hong Kong protests since last June, we have accordingly updated the article and added discussion of police arrests and detention in Hong Kong. The revised article can be downloaded here.

It's good to write about a subject highly relevant to what's going on, but it can also be nightmarish to try to stay up-to-date in a multi-year book project! We hope the Handbook can be published as soon as possible. 

The intensifying struggle within Hong Kong's legal system

By Jerome A. Cohen

The annual opening ceremony for the year’s litigation in Hong Kong was held Monday, January 13. It revealed important tensions involving some basic issues relating to criminal justice for protesters. Chief Justice Geoffrey Ma felt obliged to defend the courts against charges of being too slow in handling the unusually large number of cases being brought against protesters, and he lectured the public to understand that it cannot judge the quality of justice on the basis of the results reached by the courts for or against people they favor. He emphasized the importance of defending judicial independence and conducting fair trials, even if they did not always appear to be speedy. I wish he had been more critical of the slowness of decisions to grant bail.

Most interesting are issues identified by Hong Kong barristers (trial lawyers). In one case, on behalf of a 22-year-old photographer, it is being argued that magistrates courts have been granting the authorities search warrants that are broader in scope than the local constitution permits.

Even more challenging is the issue raised by Philip Dykes, chairman of the Hong Kong Bar Association, who argued in his speech at today’s ceremony that the Secretary for Justice, in deciding whether to bring a prosecution, must take into account not only whether the government evidence of commission of a crime is technically sufficient to justify conviction but also whether prosecution and conviction would meet “the public interest”.

This raises the question, necessarily confronted by every legal system, of the scope of the prosecutor’s discretion and the factors that the system permits to be taken into account in the exercise of prosecutorial discretion. Without taking into account these factors, Dykes maintains there can be no “rule of law”. Others, obviously favoring more prosecutions of violent protesters rather than fewer, are resisting by claiming that the “rule of law” requires a more mechanical application of the standards for prosecution.

The speeches made yesterday and the government, lawyers, media and other responses they are evoking deserve careful analysis. Some legal observers believe that, while Hong Kong’s judges continue to be independent, some judges themselves, for whatever reasons, may take too mechanical a view in their decisions, failing to take account of “the public interest”. Even more observers believe that the Secretary for Justice, a faithful instrument of the Hong Kong Government, certainly applies the legal standards for prosecution too mechanically, at least excluding from her consideration those factors that could lead to a decision not to prosecute accused protesters.

The great question is what are the political, economic, social, cultural and other factors, if any, that should be taken into account in the prosecutor’s decision whether or not to take a case to court if there is sufficient evidence for conviction. “The rule of law” is not self-defining.

Open letter to Carrie Lam: an international, independent inquiry mechanism for Hong Kong

By Jerome A. Cohen

Here is an open letter addressed to Carrie Lam from parliamentarians and officials from 18 countries. It is a powerful letter and a powerful idea whose time may be here. In particular, the letter calls for an independent inquiry into police brutality, and if the Hong Kong Government continues to reject any effort in this respect, the letter calls on the international community to establish an international, independent inquiry mechanism instead.

The Hong Kong Government, the PRC and the Hong Kong community seem unable to break the increasingly dangerous and damaging stalemate. Organization of an independent international inquiry in cooperation with courageous and informed members of the Hong Kong community may help to stimulate some creative response from the beleaguered Hong Kong Government. Of course, there are great practical difficulties in carrying out such an effort, but the effort itself may prove productive.

I only know or know about some of the signers but would be glad to see Helena Kennedy, for example, take the lead. She is a dynamic, articulate human rights lawyer and Oxford educator as well as a member of the House of Lords well-equipped to take on this extraordinary but compelling challenge. 

Time to come to the point on Hong Kong

By Jerome A. Cohen

If there is going to be further movement toward progress in reaching a viable, if temporary, solution, focus must be on the demand for an independent investigation of police activity and the instructions given to the police by higher authority in the Hong Kong Government and the masters in Beijing. Insistence on all five demands is unrealistic. But this week’s resignation of the entire group of foreign police experts hired last September in an attempt to give credibility to the Hong Kong Government’s “Independent Police Complaints Council” (IPCC) and its anticipated report offers renewed opportunity to press for a truly independent investigation.

Such an investigation must have credibly independent and respected commission leadership and members, a scope broad enough to examine relevant government policies and overall instructions as well as individual incidents of police misbehavior, power to subpoena witnesses and documents, a vigorous, competent staff and an adequate budget. This is not rocket science but the Hong Kong Government police system has steadfastly resisted the initiatives that have been taken over many months to implement the proposal.

The current attempt by the Hong Kong Government to smear the foreign experts they invited by claiming that they fail to “understand Hong Kong laws” is disgraceful. Three months of experience attempting to cooperate with the IPCC convinced the experts that they had been invited merely to serve as decorations to conceal the toothlessness of the so-called “police watchdog”.

Cardinal Zen’s call on the Vatican to speak out

By Jerome A. Cohen

Cardinal Zen, who has done so much over the decades to alert the world to religious persecution in China and the plight of Hong Kong, has once again tried to stimulate a response from the Vatican. His op-ed in the Washington Post, What’s behind the Vatican’s silence on Hong Kong?, is the most recent effort by one of the most dynamic, feisty and far-sighted human rights activists.

This, of course, is not merely a Hong Kong issue. It makes me wonder why the Pope does not speak out about the abominations of the Chinese Communist Party in Xinjiang (or have I missed something among all the increasing condemnations from others who proclaim moral principles?). Instead of secretly, endlessly and abjectly negotiating with the Party in the hopeless cause of obtaining religious freedom in China, the Vatican might grasp the opportunity to begin the long march toward recovering some of the moral authority it has so dramatically lost in recent years.

Hong Kong’s District Council Election

By Jerome A. Cohen

Here is a very interesting and hopeful article on the local situation in North Point, Hong Kong’s New Political Stars Wallop Beijing’s Loyal Foot Soldiers. North Point has been a Fujian-Hokkien place for over fifty years but even in the early ‘60s not all residents reflected pro-CCP sentiments. Many had fled China out of hunger and fear after the failure and tragedy of the Great Leap Forward, especially when the Hong Kong Government opened the border for about six weeks in the spring of 1962.

I hope the District Council elections signal a new way for resolving the Hong Kong crisis, one that demonstrates the effectiveness of democratic political processes. But if a continuing tin ear from an obdurate Hong Kong Government and Beijing squelches it, this will further discredit before the world what they have done.

My take on China’s reaction to Hong Kong High Court’s ruling declaring the mask ban unconstitutional under the PRC’s Basic Law

By Jerome A. Cohen

Yesterday, the spokesperson of the National People’s Congress Standing Committee (NPCSC) Legal Affairs Commission, Mr. Zang, responded to the HK court’s ruling by announcing that only the NPCSC can deal with Basic Law constitutional questions. The Central Hong Kong and Macao office’s Liaison Office in HK made a statement too, also suggesting a similar argument.

This view seems plainly contrary to the system established under Article 158 of the Basic Law, which contemplates the possible consideration of constitutional questions by the HK courts prior to final determination by the NPCSC, as has occurred previously.

Zang’s reference to Article 160 but failure to mention Article 158 seems an attempt to read out of the Basic Law one of its major premises. That would be roughly analogous to a staff member of the US Supreme Court announcing that American state courts can no longer consider federal Constitutional issues and that such issues are only to be decided by the US Supreme Court in Washington.

It was bad enough when in practice some years ago the HK Government successfully asked the NPCSC to dispose of certain key legal issues before the HK courts had an opportunity to consider them. Will there now be an attempt to uniformly deny the HK courts any opportunity to consider such issues through an NPCSC reinterpretation that totally emasculates all but the first paragraph of Art. 158? I doubt it. The NPCSC is likely to content itself with invalidating the HK court decision without denying HK courts the right to have made it. But let’s see!

Another issue is whether the NPCSC will wait until its December scheduled session to opine or, because of the emergency and legal confusion now generated in HK, it will urgently deal with the case in the immediate future. I would not be surprised to see the latter occur.

Hong Kong High Court rejects "mask ban" as "unconstitutional" and Beijing reacts instantly!

Jerome A. Cohen

While it’s possible that the statement just issued by the spokesperson of the National People’s Congress Standing Committee’s Legal Work Committee is merely designed to test the reactions in Hong Kong and elsewhere, that could have been done less riskily by Xinhua or various PRC media. This is rather official and seems to forecast NPCSC action invalidating the Hong Kong Court decision, which would be incendiary. It may be designed simply to warn all about what is to come as soon as the NPCSC’s ducks can be placed in order and to soften the severe public shock by anticipating it.

There is the curious final sentence stating that the legal work committee is studying the opinions and proposals put forth by some NPC delegates. This may only mean NPCSC deliberations are underway but it might leave open the way to forestall or avoid an invalidating NPCSC interpretation if reactions to the spokesperson’s announcement are severe enough.

The Hong Kong High Court’s judgment on the mask ban is a splendid example of what it means to put “government under law”

Jerome A. Cohen

Yesterday the Hong Kong High Court declared the Government’s mask ban unconstitutional. Here’s the full text of the judgment.

It is a great and important opinion by the two-judge court of first instance. It is a supreme example of the excellence of the Hong Kong court system and the flesh that it puts on the general bones of the rule of law. It demonstrates “government under law” in a vivid, albeit lengthy, way that is wholly alien to the People’s Republic of China. The reasoning and analysis on display here are a tribute to the Hong Kong Judiciary and to the members of the Bar and the Law Society who facilitated the Court’s remarkable response in so short a time.

Of particular interest are the Court’s references to the International Covenant on Civil and Political Rights, the UN Human Rights Committee and the European Court of Human Rights, although the decision is based on traditional English and Anglo-American legal principles and practices. It is inconceivable that a PRC court might invalidate a formally promulgated government norm on the ground that it constitutes an insufficiently justified infringement on freedoms of expression. Indeed, Chinese courts are not even allowed to consider any Constitutional issues. What a contrast with the Taiwan Constitutional Court that in recent years has done so much to protect political and civil rights!