Foreign Judges Are Enabling Hong Kong’s Legal Crackdown
Fernando Cheung, a former pro-democracy lawmaker who earned high respect for defending minorities and marginalized groups in the city, was sentenced to jail for three weeks, as he was convicted of contempt of the Legislative Council in Hong Kong back in 2020.
He did not commit any violent acts in legislative meetings; rather, he stood before the chairperson of the meeting and chanted slogans for 44 minutes. The chairperson decided to dislodge him after three warnings. Days later, Cheung was arrested and charged with parliamentary contempt.
Cheung is the first Hong Kong (ex)lawmaker to be imprisoned for a peaceful protest action inside the legislative chamber. His sentence should be attributed to a judgment from the top court of the city – and a senior U.K. judge was presiding at the case.
The judgment concerns whether lawmakers’ expressions, including actions, are immune from prosecutions under the protection of parliamentary privilege, which is part of the Hong Kong law. Despite highlighting the importance of free speech and legislative debates at the beginning, the Court of Final Appeal ruled that only the words and speeches of lawmakers are protected by the parliamentary privilege law. Their actions, if considered to be creating disturbance at meetings, can lead to criminal consequences. However, the judgment did not distinguish possible peaceful actions by lawmakers from violent ones. Hence, the ruling could potentially allow the prosecution, which is headed by a political appointee of Beijing, to charge lawmakers by interpreting their actions as acts of parliamentary contempt. With Cheung’s conviction, now this concern has been realized.
Did Cheung’s actions effectively disturb the legislative meetings? The chairperson could have dislodged him immediately once he began to chant, but she decided to warn him three time and tolerated his actions for more than 40 minutes before kicking him out. The legislature had already punished Cheung by dismissing him from performing his duties. The criminal consequence then came from the executive government, which is newly empowered by the National Security Law and other laws passed by Beijing to crack down on the opposition camp effectively.
Sadly, that judgment was endorsed by Lord Robert Reed, the president of the U.K. Supreme Court. No doubt, even if Reed disagreed with the judgment, he would be a minority in a five-judge bench. But he could still release a dissenting opinion to give his viewpoints to the public, to explain the applications of fundamental values say free expression, checks and balances against executive arbitrariness, and the rule of law in such context. Yet Reed chose to simply say “I agree with the judgment,” giving unreserved support for the ruling.
Cheung’s case serves as a dreadful precedent: Legislators can now be jailed for peaceful expression in legislative meetings. This substantively diminishes the effectiveness of separation of powers in Hong Kong. Although all the opposition lawmakers are gone after the reshuffling of Hong Kong’s electoral system, there are other former pro-democracy lawmakers awaiting trial on the same charge as Cheung.
One month before he endorsed the judgment, Reed made a public statement to give full support for the U.K. Supreme Court to continue to send its judges to preside at Hong Kong’s Court of Final Appeal, as he found the city’s court “continues to act largely independently of government and their decisions continue to be consistent with the rule of law.” Ironically, the judgment he endorsed is now being weaponized by the government to punish their enemies.
Hong Kong’s legal system has been encroached upon by the National Security Law (NSL) imposed by Beijing in 2020. Many conventional legal practices and procedures meant to safeguard the basic legal rights of citizens are subverted for NSL trials, including a jury trial at the High Court and the presumption of bail. Even when a NSL case appeared at the Court of Final Appeal, foreign judges were not given the chance to hear it, as the NSL empowers the chief executive to handpick judges for this category of cases.
That said, foreign judges presiding at the top court of Hong Kong are expected to enhance the integrity of the judiciary, as well as public trust toward judicial independence. They are not simply watchdogs for commercial litigation, nor they should be window-dressing for a system that does not appreciate the rule of law and independent court. When they have opportunities to handle constitutional reviews, the public would expect their engagements could provide remedies for abuse of power from the top, instead of empowering the powerholders to carry out their autocratic projects more effectively.
It is time to reflect on the roles and performance of U.K. judges presiding on Hong Kong’s top court based on substantive evidence, and keep constructive debate on their possible responsibilities in the future.
(Published at The Diplomat on 11 February 2022)