• jeremiahbull

'Justice' is meaningless under CCP Security orders

Updated: Jul 19, 2020

Given the way that criminal justice is dispensed in mainland China there is serious doubt as to whether Hong Kong's own justice system can withstand the threats and manoeuvres of its authoritarian overlord. Since the National People's Congress (NPC) decided on 28 May 2020 to devise and impose its own set of national security laws on Hong Kong (HK), the Special Administrative Region (SAR) established at the handover from British rule in 1997 has been reeling in shock and dismay.


The NPC’s resolution authorised its standing committee to craft a national security law to “prevent, stop and punish” threats to national security. For many, it seemed the autonomy of the SAR was again being usurped since they were being given no chance to discuss, or debate the details of the proposed legislation (see our blog "China and the breach"). Those with a legal mind even went as far as questioning the lawfulness of the NPC's intention of attaching the national security legislation in the appendix of the Basic Law.


Putting the local and international outcry about the national security legislation aside, pro-Beijing officials in HK and spokesmen for the Chinese Communist Party (CCP) have equally issued weighty statements trying to persuade the people of the city how urgently the SAR needs the legislation, and that citizens have nothing to fear.


Significant among these voices has been that of Hong Kong's Secretary for Justice, Teresa Cheng who is the head of the Hong Kong Department of Justice, the chief legal advisor to the Chief Executive of Hong Kong (CE), and the chief law enforcement officer of the Government of Hong Kong. It should be noted that the role of Justice Secretary is a political appointment insofar as the Secretary for Justice, is nominated for the role by the Chinese government on the advice of the Chief Executive of Hong Kong, and is an ex officio member of the Executive Council (ExCo) of Hong Kong. She has been the Secretary for Justice of Hong Kong since 6 January 2018, and has a background as Senior Legal Counsel, arbitrator and politician.


As justice minister, Teresa Cheng, gave a public assurance that her department will make independent prosecutorial decisions under the new national security law Beijing is imposing on the city, and she promised to remain free of any interference from authorities in mainland China.


Further, citing Article 63 of the Basic Law, which is considered the city’s mini-constitution by pro-Beijing authorities, Cheng said her department was responsible for all criminal prosecutions without any interference. We note it's not the first time she has said this: a similar statement was made back in July 2019 at the Ceremonial Opening of the Legal Year. WTPOHK are of the view that while it may suit CCP to call the Basic Law HK's 'mini-constitution', the prior legal agreement between China and the UK - The Joint Declaration -must stand as HK's constitutional document (see our blog on this).


It is possible that Cheng has had some secretive peek into the planning for the National Security legislation: Cheng returned from a trip to Beijing early in June, alongside Chief Executive Carrie Lam Cheng Yuet-ngor, security minister John Lee Ka-chiu and police chief Chris Tang Ping-keung. They had a meeting on the new law with top mainland officials overseeing Hong Kong affairs, including Vice-Premier Han Zheng and director of the State Council’s Hong Kong and Macau Affairs Office Xia Baolong, as well as state public security minister Zhao Kezhi.


Back in HK many comments on the national security law are purely speculative since NO DETAILS of the legislation have emerged beyond its scope, that the law is expected to criminalise acts or activities relating to secession, subversion or terrorism, as well as foreign interference in the SAR.


Any decision to prosecute suspects under the new national security law that Beijing is tailor-making for HK will rest with the city’s Department of Justice, instead of its mainland Chinese counterpart, Hong Kong’s justice minister has promised.


Cheng has also played down differences between Hong Kong's common law system and the civil law system under which mainland courts operate. She said both shared similar principles, including a presumption of innocence and putting the burden of proof on prosecutors.


[UPDATE: See below, for her U-turn on these comments!]


So, are we to believe and trust that proceedings under HK's national security law will be open, fair, just, and WITHOUT INTERFERENCE from the CCP?


At present there is very little trust in HK governance whatsoever (see our three blogs on its falling approval ratings). The Department of Justice is also possibly suffering similar dents to its public perception given things like a recent case in which a HK judge made disparaging comments about protesters. The judge oddly considered the defendant in the prosecution "a victim" in the case, despite the fact that he had assaulted two pro-democracy people standing at a Lennon Wall and critically slashed a journalist with a knife (see our blog on the case).


As of 10 June 2020 approximately 9,000 people have been arrested for their part in HK protests since June 2019.


[BOLD added by editor in the following notes]


So here's what Article 63 of Hong Kong's Basic Law says:

The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.


WTPOHK note that previously the CCP has stuck its nose into HK's judicial affairs on more than one occasion. It's extremely disturbing since HK is guaranteed an independent judiciary under the terms of BOTH the Sino-British Joint Declaration and The Basic Law.


July, 2019 Beijing has offered its full support to Hong Kong’s embattled leader and its police force, and said violent protesters must be swiftly punished, in rare remarks by the government office that oversees policy towards the territory. The Guardian


August, 2019 Beijing said widespread anti-government protests in the semi-autonomous city showed “sprouts of terrorism,” and such violence must be severely punished, “without leniency, without mercy.” CNBC


September, 2019 The Hong Kong and Macau Affairs Office (HKMAO) took no prisoners when it gave its instructions: “The HK government, including the executive, legislative and judiciary branches, as well as all sectors of society must take ‘bridling turmoil and curbing violence’ as the city’s most pressing task and the overwhelming priority....Especially to those key violent criminals and their backstage masterminds, organisers and agitators, [we] must show no mercy and pursue till the end.”


November, 2019 Pro-democracy demonstrators had targeted transport infrastructure in the SAR including the MTR and the city's airport. The published response of the HK and Macau Affairs Office was that it “resolutely supports the HK government in adopting every necessary measure to end the unrest and restore order as soon as possible, arrest the criminals and severely punish their violent acts”. Going further, it called on the HK government, police and judiciary to “decisively adopt all necessary means to forcefully crack down on various acts of violence and terrorism”.


November, 2019 "A Hong Kong court overturned a government emergency ban on protesters wearing masks to obscure their faces. The next day, state news agency Xinhua quoted a spokesman for a body attached to the standing committee saying that Hong Kong courts had no power to rule on the constitutionality of the city’s laws" Reuters


April, 2020 "The independence of Hong Kong's judicial system is under assault from the Communist Party leadership in Beijing according to senior judges in the SAR. Three of Hong Kong's most senior judges told the Reuters News Agency that the independent judiciary, the cornerstone of the city's broad freedoms, is in a fight for its survival. Beijing's effort to hobble the judiciary is multi-pronged, according to more than two dozen interviews with judges, leading lawyers and diplomats in Hong Kong. RTHK


(see our blog: "The independence of Hong Kong’s judicial system is under assault from CCP")


Interestingly the PRC Constitution also includes a clause about intolerance of interference:


PRC Constitution: Article 131 The people’s courts shall, in accordance with the provisions of law, independently exercise adjudicatory power, and shall not be subject to interference from any administrative organ, social organization or individual.

Given these facts, we are left wondering whether the CCP really understands and respects

the principles of JUSTICE at all? You know, presumption of innocence, etc that Teresa Cheng mentioned. It's hard to explain why in China "Families of Chinese activists face house arrest, harassment from 'smiling tigers'", people go missing, and Chinese rights activists are often released from prison into de facto house arrest or enforced restriction to their villages, where they are obliged to remain for a number of years.


A number of lawyers on the mainland suffer ongoing disbarment as "...an effective tactic by the Chinese government to further diminish the space for human rights advocacy," said Yaqiu Wang, a researcher at Human Rights Watch.


Confounding this, and not forgetting the political nature of Teresa Cheng's appointment, we note the disturbing statement made by Secretary for the Civil Service, Patrick Nip. On 7 June 2020 he said that HK civil servants have “dual identities” and must be loyal to both the SAR and China, adding that government workers must not consider issues from a “localist perspective”. So does Teresa Cheng as a worker for the government also have SEVERAL masters and who is her first loyalty to? Does it mean her loyalty can shift?


We clearly need to be very cautious!


There's is no point being afraid. I know that the CCP and those zealous nationalists who work for the party are simply unable to control themselves! They are so used to exercising their authority, it will only be a matter of time once the national security law is passed in HK that we see them making further inroads here, destroying people's lives, destabilising democracy and further undermining the legal agreements upon which the SAR was established at the handover. There's no doubt it will hurt HK, but it will be the death of the CCP too!

Jeremiah B.


Further Reading:

10 June 2020, SCMP, Why Hong Kong civil servants are answerable only to the city

11 June 2020 RTHK, No juries for national security trials: Regina Ip


UPDATE:

14 June 2020 Bloomberg, National Security Bill won't conform to Hong Kong Law, Govt Says Teresa Cheng, writing in her blog, said that China’s new national security laws for HK won’t fully conform to the city’s common-law tradition. “It is impracticable and unreasonable to expect that everything in a national law, the National Security Law, will be exactly as what a statute in the HKSAR common law jurisdiction would be like,” she said in her blog post.





UPDATE:

18 July 2020, RTHK, "Losing UK judges would be disastrous for HK: expert" A Hong Kong legal expert has expressed alarm after the president of the UK's Supreme Court, Robert Reed, said its judges may no longer be able to serve in Hong Kong if the national security law undermines the city's judicial independence.


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