China's National People's Congress Standing Committee deals a death blow to Hong Kong judicial independence

 

Sign spotted in the city this month (I get the feeling

the cleaners tried to erase it but weren't wholly successful)

 

In late November, Hong Kong Chief Executive John Lee indicated that he'd ask the China’s top lawmaking body to decide if overseas lawyers could be blocked from taking cases involving the national security law that China imposed on the city back on June 30th, 2020.  Today, the National People’s Congress Standing Committee (NPCSC) issued its decision that Hong Kong’s Chief Executive should now decide whether overseas lawyers working on cases involving the sweeping national security law would pose a threat to national security.   

 

On the face of it, the NPCSC's intepretion can look like China is affirming the "One country, two systems"; something that would be a welcome move.  But, as more than one legal expert has already pointed out, what's in fact happened is further damaging to the rule of law and concept of an independent judiciary in Hong Kong.

 

Lawyer Kevin Yam wrote quite the Twitter thread on this which began as follows: "The NPCSC interpretation goes well beyond just the relatively narrow (but already worrying) issue of whether foreign lawyers can represent parties in Hong Kong [national security law] cases."  Among other things, this interpretation makes it so that "both the Hong Kong [Chief Executive] and the [National Security] Commission can now intervene and override the [Hong Kong] court at any time, and their decisions and acts would not be subject to any judicial review or any other form of legal challenge or oversight."

 

And "it gets worse. Given that[ Hong Kong's National Security] Commission has plenary, unchecked powers to decide what is or isn’t NatSec, and make decisions in relation to the same, such powers can go beyond NatSec litigation or any litigation. It can touch on any policy area."  Consider this: "If [the Hong Kong] NatSec Commission decides that any policy or laws involving regulation of lawyers, pandemic prevention, education, financial regulation, or anything else involves NatSec, it can take action as it pleases with no judicial, legislative or executive oversight."  

 

"As such, this NPCSC interpretation does not merely destroy the authority of [Hong Kong's] courts, but it destroys the entire integrity of the [Hong Kong] legal system, effectively allowing the Chief Executive (in litigation) and [the National Security] Commission (generally) to rule by decree"!  And you don't have to just take Kevin Yam's word on it.  Consider this by legal scholar Eric Yan-ho Lai of Georgetown University: "Now, the National Security Committee can trump all judicial decisions". 

 

More from Eric Lai: Beijing's "interpretation today creates a de facto Political-Legal Committee for Hong Kong: judicial independence vanishes when the executive authorities can override court decision without being challenged by judicial review".  And even a lay person like me can see that when judicial independence is no more, the courts are inevitably going to just hand in decisions that will please Hong Kong's executive body: meaning every national security ruling will be in favor of government prosecutors; with everybody who is charged with having committed a national security law crime inevitably being found guilty and never ever being found to be innocent.  

 

Eric Lai was moved to make a scary and damning analogy:  "Theoretically, the [national security law] interpretation today creates a de facto Prerogative State like what Germany had in the 1930s, when national security authorities enjoys privileges to adjudicate political trials whereas local courts operated in parallel to handle other disputes."  And as we know, Germany in the 1930s was not a good place.  

 

Even before today's ruling, it wasn't as though national security law-era Hong Kong was a good place for lawyers and others seeking for justice to be served.  In the past 24 hours or so, a Reuters piece about Hong Kong human rights lawyers fleeing abroad amid an effort to cleanse the city of dissent has been circulated on Twitter by the likes of Kevin Yam (who was interviewed for it) and Samuel Bickett -- two lawyers who used to live and work in Hong Kong but now most reluctantly don't.  The following excerpt from this lengthy investigative piece written by four journalists should give a sense of Hong Kong's serious legal brain drain: 

Facing or fearing prosecution under the law, or concerned about threats to Hong Kong’s freedoms, many lawyers and legal academics have quietly departed, mostly to Britain, Australia and North America. 

One Hong Kong solicitor who has relocated to England told Reuters that she knew of at least 80 Hong Kong lawyers who had moved to Britain since the security law was imposed in June 2020. Another lawyer, now living in Australia, estimated that several dozen Hong Kong lawyers had moved there.

Some are preparing for the possibility they may never return. Kevin Yam, a commercial solicitor and now vocal critic of Beijing’s crackdown in Hong Kong, said he took his mother’s ashes with him when he departed for Melbourne in April. “I wanted to be fully prepared, given the way Hong Kong is going,” Yam said. “If I couldn’t ever get back to Hong Kong, I didn’t want to leave her there.”

And the following excerpt -- about what former legal constituency represenative Dennis Kwok endured before leaving in November 2020 -- should explain why these lawyers have decided to leave Hong Kong, many for good:

In mid-2020, Kwok found GPS tracking devices under his car “twice in one week,” he said. He provided Reuters with a picture of one of the devices – a small, black rectangular case containing a SIM card to relay positioning data to another device.

Threats were delivered to his office, he said. On one occasion, Chinese “funeral money,” fake paper money sometimes burned by the graveside in a folk tradition, was sent to his office with a note, Kwok recalled. “‘You will be needing these very soon,’ the note read,” he said.

In November 2020, Kwok and three other pro-democracy lawmakers were ousted from the Legislative Council after China’s [legislative body] ruled that sitting members could be disqualified if deemed a threat to national security. That month, Kwok quietly slipped out of Hong Kong. He said articles in the pro-Beijing press, calling for his arrest and accusing him of being a foreign agent, also spurred him to leave

“After they disqualified me,” he said of the... move to oust him, “it was very clear the writing was on the wall.”

And now, the writing looks to be very much on the wall for Hong Kong's legal system as a whole, not just the city's remaining lawyers working to defend pro-democracy activists and other people who want justice to be served.  This even when they are themselves not behind bars -- unlike, say, Chow Hang-tung -- and defendants in cases rather than just the legal counsel -- again, like with Chow Hang-tung but also the likes of Martin Lee and Margaret Ng.