The Hong Kong Government and the Rule of Law
Twenty-five years ago, foreign investors and the international business community had hopes that Hong Kong’s handover from the British government to China would keep this international financial hub vibrant and its independent legal institutions robust under the “one country, two systems” framework. “One country, two systems” was the strongest guarantee of the new authorities’ commitment to defending the rule of law, judicial independence, basic rights and liberties, and good governance with a high degree of autonomy.
Unfortunately, such faith in the new regime appears to have faded. The inherent contradiction between Hong Kong’s common law system – which appreciates protections of international human rights and the common law principles – and China’s socialist authoritarian legality, which disapproves of judicial independence and political liberalism, has repeatedly put Hong Kong’s legal system in turmoil in the past 25 years.
The National People’s Congress Standing Committee in Beijing has been blamed as the culprit in eroding Hong Kong’s judicial independence and the rule of law since the handover. The Standing Committee had issued five interpretations of the Basic Law that either overrode decisions of the top court in Hong Kong or influenced ongoing court hearings related to constitutional reviews, which eventually led to disqualification of pro-democracy lawmakers in Hong Kong. The Standing Committee also released “decisions” to determine constitutional disputes in Hong Kong and to introduce new practices that undermine the jurisdiction of local authorities. These decisions, which are not delegated from the Basic Law, were construed by key Beijing officials as “nine sacred tripods” (一言九鼎), implying that the rule of state power will prevail over the rule of law.
Added to this, the National People’s Congress’ introductions of the National Security Law and the “patriotic” electoral reform fundamentally reshuffled Hong Kong’s limited democratic institutions and judicial autonomy.
Even though much of the damage was done by the Chinese authorities, the Hong Kong government has its own responsibility to provide remedies and regain public trust in the “one country, two systems.” The Hong Kong government is one of the key stakeholders in the city’s rule of law and judicial independence. In particular, Hong Kong’s secretary for justice, like attorneys general in many rights-respecting jurisdictions, acts as the government’s legal advisor and assists the government to respect independent courts and the defend the rule of law.
Of course, the secretary for justice is a political appointee that must seek Beijing’s approval. Yet in the past, the position was always filled by competent local barristers or solicitors, who should have earned much appreciation from the international legal community for their commitment to the rule of law, reflected in their private practice and legal expertise.
The latest secretary for justice, Teresa Cheng, was one of them. As a senior counsel in Hong Kong and chartered arbitrator in many common law jurisdictions, Cheng’s expertise appeared to indicate Beijing’s desire to establish Hong Kong as the top arbitration center for its Belt and Road Initiative, and later the Greater Bay Area project.
At the very beginning of Cheng’s tenure, the local legal community, including pro-democracy lawmakers, hoped that she could defend Hong Kong’s human rights and freedom from political interference. In her first address to the legal community, she publicly asserted that her Department of Justice would continue to provide honest, independent and professional advice to the government on the legality of its acts and its compliance with the laws.
However, Cheng disappointed many. She refused to seek a second legal opinion before deciding not to charge the former chief executive for misconduct; defended the controversial extradition law amendment bill, which led to the six-month citywide protests in 2019; proposed the anti-mask law, which overrode legislative procedures by resorting to emergency laws; promoted the National Security Law, which limits judicial independence; and actively used the power in the same law to remove a jury trial from the first and foremost national security case in Hong Kong.
In the midst of the 2019 citywide protests, a number of public prosecutors in the Department of Justice released an anonymous petition publicly accusing Cheng of putting political consideration over prosecutorial principles and Director of Public Prosecution David Leung of failing to be a gate-keeper. A year later, Leung resigned from his role, citing differences with Cheng in running the Prosecutions Divisions.
At the same time, many in-house government lawyers also resigned in the past four years, raising concerns of whether the government could gain confidence from the legal community to serve in the Department of Justice. Last year, Cheng proposed an amendment to the Legal Practitioners Ordinance in Hong Kong to allow in-house government lawyers, both barristers and solicitors, to be promoted as senior counsel, a position that is only bestowed on barristers following the British common law tradition. Despite public criticisms and strong opposition from the Hong Kong Bar Association, Cheng dismissed the claim that the change was patronage to attract more lawyers to join the government.
Whatever the intention of the amendment, it is obvious that Cheng’s leadership in the Department of Justice has given the impression that it did not handle politically sensitive criminal cases in a fair and robust manner.
After the National Security Law was enacted in 2020, the Department of Justice set up a special division to handle national security cases. While we have no idea how the national security division decides to handle prosecutions, many individual activists, journalists, as well as ordinary citizens are now being charged with speech crime under the National Security Law, such as sedition or inciting secession or subversion. Quite often, the public prosecutors convince the court not to grant bail to defendants under the National Security Law, providing evidence such as defendants’ text messages to journalists or foreign diplomats to justify their claims. Consequently, the prosecution has become a key player in eroding basic rights that are enshrined in the Basic Law and the International Covenant on Civil and Political Rights.
As secretary for justice, Cheng was supposed to be a gatekeeper to make sure the prosecution acts in accordance with Hong Kong’s commitment to international human rights. But she acted in the opposite way, in effect enabling the authorities to crack down on civil society and political opposition in Hong Kong. As reflected by many NGOs and academics in their submissions to the U.N. Human Rights Committee, which is reviewing Hong Kong’s implementation of the International Covenant on Civil and Political Rights this week, Hong Kong’s declining rule of law and judicial independence is a result of the government’s failure to fulfil its obligations to international human rights regime.
Paul Lam, a senior barrister in Hong Kong, has succeeded Cheng in Chief Executive John Lee’s new cabinet. Lam was reported as a moderate in local newspapers. However, there is little reason to hope for a more robust commitment to the rule of law. Lam has served as a law professor in the mainland, as well as chairing several local statutory committees in the past. Moreover, back in 2017, Lam, as the Bar Association chairman, made very limited efforts to denounce the NPC Standing Committee’s decision to permit a joint checkpoint in a Guangdong-Shenzhen-Hongkong express railway station. That arrangement was regarded as violating the Basic Law of Hong Kong by the legal community, which expressed its grievance with Lam’s tepid response. Hong Kong’s barristers then ousted Lam and replaced him with a famous human rights lawyer, Philip Dykes, in the 2018 Bar Association election.
It’s unlikely that Lam can rebuild public trust, either locally and overseas, in Hong Kong’s rule of law and judicial independence. Given the governing direction of Beijing over Hong Kong, the secretary for justice must make national security a priority in service to the political interests of Beijing. The newly created deputy secretary for justice post, which will be filled up by a former pro-Beijing party lawmaker, hints at the political orientation of Department of Justice in the future.
Unfortunately, the city’s rule of law and independent courts will not be able to remain vibrant and robust under the ongoing pressure from the government’s use of national security laws to crack down on Hong Kong. International business and investors are inevitably affected by the loss of a Chinese hub that used to have unlimited access to information, a free and open society, as well as independent journalism, under the new political order of Hong Kong.
(Published in the Diplomat, 7 July 2022)