By Jerome A. Cohen
Once again, a pro-PRC publication offers us the opportunity to hear from Mr. Grenville Cross, a very able lawyer and former Director of Public Prosecutions for Hong Kong, in defense of the latest restriction on political freedoms in the SAR. This time the issue discussed – the one-year postponement of the Legislative Council (LegCo) election – presents the occasion for a more plausible excuse than some of the other HKG and PRC actions Cross has advocated and defended. What is most notable here is that, rather than devote space to the more detailed consideration of the postponement that the issue merits, Cross extends his brief to an attack upon the Pompeo-led US condemnation of PRC actions re HK including the election’s postponement. Many in the US may find this diversionary attack more persuasive than his defense of the election postponement decision.
In discussing the postponement, Cross cites examples of similar decisions having been made in other countries including the UK. Yet he fails to mention the several recent contrary examples closer to HK where East Asian countries have successfully held elections after taking due precautions to prevent dangerous increases in the spread of Covid-19. Moreover, he also fails to mention anything about the pros and cons of resorting to written ballots. Certainly, written ballots, despite Donald Trump’s pathetic attempts to discredit them, could be used to accommodate those Hong Kongers who wish to stay home but nevertheless vote and those who cannot or will not return from residence on the Mainland or elsewhere. Indeed, since I give great weight to the risks that crowds bring to spread of the virus, I have expressed wonder about the merely modest attention that has been accorded the feasibility of resort to written ballots for everyone eligible to vote in HK. (In November, my wife and I will use written ballots to vote against Trump in NY!)
In the second part of his essay, where Cross extends his brief, or his mandate, to the USG counterattack, he demeans his arguments and himself by referring to critics of the postponement at home and abroad as “anti-China elements” who have “attempted to make sordid political capital” out of a government decision that supposedly had nothing to do with politics, only public safety. The criticisms of democratic Legislator Claudia Mo and disqualified candidate for LegCo Joshua Wong, instead of being answered, are dismissed as “the poisonous ramblings” of people who are simply “grandstanding and pleasing their foreign backers”. Any responsible opposition leader would not oppose but would agree with the government, Cross maintains.
If, as he claims, Joshua Wong is merely “a professional agitator”, should we dismiss Cross as “a professional apologist”? It would be good to know the extent to which he may be influencing the new office within the HK Department of Justice that decides on NSL prosecutions and that excludes the current Director of Public Prosecutions, a more independent-minded successor to Cross who has just announced his resignation, from even knowledge of the prosecutorial decisions being made.
As a final point in his argument, Cross abandons his broader political slashing and returns to political-legal analysis, implying, undoubtedly correctly, that the forthcoming special session of the NPCSC, in extending the current LegCo’s term by the necessary one year to fill the postponement gap, will disqualify from further LegCo service all current LegCo members who have been or will be disqualified from standing for election in the postponed LegCo election. What responsible opposition leader can complain about this further example of the new HK “rule of law”?