By Alvin Y.H. Cheung
Alvin Y.H. Cheung is a J.S.D. candidate at New York University School of Law and an affiliated scholar at NYU’s US-Asia Law Institute. He previously worked in Hong Kong as a barrister and as a lecturer in the Law & Public Affairs Department at Hong Kong Baptist University. The views expressed in this commentary are his own. View more opinion on CNN.
On June 9, 2019, organizers say that more than 1 million protesters in Hong Kong — which would be nearly one in seven people in the city — voiced their opposition to an extradition bill that would allow fugitives to be transferred to mainland China. Speaking to the Hong Kong Free Press, demonstrator and retired civil servant HK Lau said that the passage of the bill would mean the end of the “One Country, Two Systems” principle under which the city had been governed since the resumption of Chinese rule in 1997. But speaking after the demonstration, Chief Executive Carrie Lam pledged to continue with the bill, asserting that it would improve the legal system. However, describing a bill that would permit renditions to China — a country whose leader, Xi Jinping, has categorically rejected judicial independence — as strengthening the rule of law is not merely cynical doublespeak. Rather, Lam’s statement reflects her government’s strategy of abusing the city’s judiciary to do its dirty work.
Hong Kong’s government frequently touts the territory’s rule of law, with a particular focus on the judiciary’s international reputation for independence. In contrast, the Umbrella Movement and subsequent repression of the territory’s pro-democracy movement have underscored the extent to which the executive and legislative branches are beholden to Beijing. As a result, the Hong Kong and Beijing governments have increasingly tried to hide their repression behind Hong Kong’s judges.
In 2014, police cleared Umbrella Movement protesters from Mong Kok district not by exercising public order powers, but by enforcing a civil injunction obtained by private actors like minibus and taxi companies. The lawyer representing one bus company that obtained an injunction was part of a pro-Beijing political party in Hong Kong and attended a closed-door meeting with President Xi Jinping, along with a group of Hong Kong’s elite — raising questions that the injunctions amounted to the legal equivalent of “astroturfing,” or disguising the true sponsors of a political message to make it resemble a grassroots initiative. The fact that then-Secretary for Justice Rimsky Yuen had met with the “plaintiffs” in connection with what was supposedly a civil action brought by minibus and taxi operators strongly suggests that Yuen was using the suit as a fig leaf to conceal the suppression of peaceful protest. (Yuen has publicly disputed these allegations.)
More abuses of judicial process followed. In 2016, after pro-democracy and localist politicians — the latter advocate for the preservation of the city’s autonomy — made major gains in legislative elections despite pre-emptive disqualifications, the Hong Kong government took to the courts to demand the expulsion of localists Yau Wai-ching and Baggio Leung. Before the Hong Kong court could issue a ruling, an “interpretation” of the Basic Law — the territory’s constitutional document — by the National People’s Congress Standing Committee in Beijing effectively dictated the outcome of the case, by declaring that oaths of office must be made “sincerely and solemnly.” The “interpretation” became the basis for four further expulsions in 2017.
Further, the Department of Justice has abused its prosecutorial discretion to serve partisan political purposes by prosecuting pro-democracy activists and by demanding harsher sentences for them, while turning a blind eye to abuses by police officers during the Umbrella Movement. Although Lam has denied that her government engages in political persecution through judicial means, this pattern of prosecutions has prompted international concern. In its 2016 Concluding Observations on Hong Kong, the United Nations’ Committee Against Torture — a body of experts tasked with monitoring compliance with the Convention Against Torture — specifically cited concerns over “consistent reports that police resorted to violence against more than 1,300 people,” as well as violence by pro-Beijing counterdemonstrators. It also called on Hong Kong authorities to duly prosecute alleged perpetrators of such violence.
Seen in light of this pattern of conduct by Hong Kong’s government, the extradition bill is nothing new. As the Hong Kong Bar Association explained in a guide to the bill, the Hong Kong courts’ function in dealing with an extradition application is merely to see that the formalities have been satisfied and that there are no grounds for refusing surrender. It may not conduct a hearing into whether the suspect is guilty of the alleged offense. Nor may it inquire into the “quality of justice” they will receive once surrendered.
The bill, therefore, leaves no meaningful scope for the Hong Kong judiciary to protect the rights of anyone whom the mainland authorities seek to extradite. Instead, it would compel Hong Kong judges to rubber-stamp extradition requests from Beijing, even if potentially based on cooked-up charges.
Hong Kong’s judges, like their counterparts in Britain and the commonwealth, have historically remained discreet on political issues. However, the developments described above have prompted some of them to speak out. In 2018, several senior judges expressed concerns to Reuters about the extent to which Basic Law “interpretations” were limiting judicial authority. One diplomat described the judges to Reuters as “trapped” in a situation where “they will have to increasingly implement party diktat.”
The bill has only made these anxieties more acute. A senior judge told Reuters they were “deeply disturbed” by the bill, which they described as “unworkable.” Others pointed out that such cases would expose them either to political pressure from Beijing or to accusations that they were no longer independent.The judicial unease about the bill should prompt alarm. If — as currently seems likely — the Beijing-packed legislature approves the bill by July, Hong Kong’s judges will soon be forced to choose between protecting the territory’s human rights and rule of law — and doing China’s bidding. In a system where the Chief Executive retains the power to veto recommendations for judicial appointments, and in which official state policy describes Hong Kong’s judges as “administrators,” Lam and her successors should not take the continued good repute of the territory’s courts for granted.
Article originally appeared in CNN on 12 June 2019.