Grenville Cross
Stresses that equality before the law remains the cornerstone of the city’s legal system
On July 1, Hong Kong celebrated the 21st anniversary of its return to China. Although some people had predicted the worst for Hong Kong after 1997, their fears were illusory. As a special administrative region of China, Hong Kong has exercised its “high degree of autonomy” in a way which has attracted international plaudits.
In 2018, the Heritage Foundation rated Hong Kong the world’s freest economy, for the 24th year running, ahead, for example, of the United States, which came 18th out of the 170 places surveyed. In the World Justice Project’s Rule of Law Index, which measures rule of law adherence, Hong Kong came 16th, out of 113 places surveyed, while the US was 19th. In Transparency International’s Corruption Perceptions Index for 2017, Hong Kong ranked 13th out of 180 places surveyed, with the US in 16th place.
Underpinning Hong Kong’s success has been the Basic Law, a constitutional document enacted by the National People’s Congress. This remarkable instrument protects the rights and freedoms of its citizens and secures their way of life. It provides that the International Covenant on Civil and Political Rights should remain in force in Hong Kong and be implemented through its laws. Although the ICCPR upholds freedoms of expression and association, restrictions are nonetheless permissible, as where the interests of national security, public safety or public order so require. Fair-minded observers know how successful, despite some inevitable strains, Hong Kong’s “one country, two systems” paradigm has been, with British Foreign Secretary Jeremy Hunt saying recently that it “generally continues to function well”.
It is disappointing, therefore, that the Congressional Research Service, a think tank working for the US Congress, should have produced a report which is strong on distortions but weak on accuracy. Intended to pander to anti-China elements, it recycles myths and halftruths and suppresses positive things. It contends that Beijing has undermined Hong Kong’s autonomy, whereas the reverse is true.
The central government has scrupulously observed the Basic Law, and exercised maximum restraint in their dealings with Hong Kong. Great faith has been vested in Hong Kong people and their capacity to manage their own affairs. Although, for example, the central government could simply have imposed its own national security law on Hong Kong in 1997, given that this is an issue of great national importance, it decided instead to leave the enactment of the necessary laws in the hands of its people, whom it trusts to discharge their obligations in their own way.
The CRS, by homing in on China’s 2014 white paper, which indicated that officials, including judges, should love the country, has suggested that judicial independence is being threatened. This, however, is poppycock, and was certainly not how the judges themselves saw things. When asked at the time, Lord (David) Neuberger, a British judge on the Hong Kong Court of Final Appeal (and, until last year, the president of the UK Supreme Court), said “I wonder if there is anything to worry about in the white paper”. He explained that judicial independence was not inconsistent with judicial patriotism, and that, having himself taken a judicial oath of allegiance to Hong Kong, “the way in which judges demonstrate their patriotism is by an irrevocable and undiluted commitment to the rule of law”.
In like vein, the CRS repeats claims that the former secretary for justice, Rimsky Yuen Kwok-keung, abused his prosecution powers by going after “prodemocracy protesters while dismissing cases of alleged abuse by Hong Kong police officers”. This, of course, is baseless, but the concern must be that US congressmen, with little or no knowledge of China, will be misled. In reality, there were wholly legitimate prosecutions of people who took part in largescale public disorder, which was violent and resulted in 10 security guards being injured.
Although Yuen certainly sought higher sentences on appeal, this was because he considered community service orders to be an unduly lenient response to a grave offense. Although the judges ultimately disagreed with his stance, they nonetheless made clear that in future such conduct would attract severe punishment. In the US, violence on the streets is not tolerated, and there is no reason why it should be accepted in Hong Kong, as the CRS must know. In both places, nobody is above the law, and political beliefs never justify violent public disorder. It is worth reflecting how much more severely violent offenders are dealt with under the American judicial system. As for the CRS’ suggestion