To what extent will Hong Kong's new National Security Law "educational reforms" affect its law schools?

By Jerome A. Cohen

Thus far, apart from concern over the fate of Professor Benny Tai, whose earlier criminal conviction now pending appellate review has left him free on bail but under review for possible removal from the Hong Kong University Law School faculty, little attention has been paid to the potential impact of the new NSL on the SAR’s law schools. 

Will freedom of speech continue to prevail at the many forums they sponsor? Will speaking panels be unfairly tilted in favor of pro-government advocates?  Will certain teaching appointments for untenured professors not be renewed for unspoken political reasons? Will certain courses no longer be taught, or their content skewed in response to the new situation? Will new, politically inspired courses be added? Will there be pressures on scholars not to research certain topics or to pursue others? Will classes be monitored by students who are encouraged to report discussion of forbidden topics? What topics might be forbidden? Will the criteria for enrolling undergraduate and post-graduate students be altered? For hiring teachers and research scholars? Will it be possible to continue cooperation with foreign law schools and research institutions and to attract foreign students? Many other questions might be asked. Much is at stake here.

A closely related issue is the impact of NSL Article 55 on academia more generally, making individual scholars subject to government prosecution, not merely restrictions imposed by their academic institutions. Some analyses may be drawing the potential net for prosecution too narrowly. I fear the law may go beyond the examples being discussed by expert observers. For example, in view of Article 55, many scholars now teaching in HK, whether bred in HK or arrivals from the Mainland or from foreign climes, are asking themselves, as recently as today, should they continue to grant interviews to foreign media, take part in international Zoom-type fora, write another op-ed or blog condemning the new NSL, meet with students including foreign students, etc.? Moreover, are their foreign interlocutors likely to also be pursued by the PRC as “colluders”? And will activist scholars in HK have alleged violations of the NSL used against them when they apply for promotion, course assignments and research grants? These are not merely academic questions, as many well appreciate. 

Furthermore, although I agree that it’s best for activist teachers to carry on until some specific warning is issued, it is a more difficult decision for a university professor who is not a foreign national. Yet I have even advised one who isn’t a foreigner to not significantly self-censor until a warning is issued. In response I was told that informal warnings and advice had already been personally given by university officials, even before adoption of the NSL!! In these circumstances, even the bravest are now becoming at least somewhat more discreet. 

My critique of an important pro-Beijing legal endorsement of the NPC draft Decision on Hong Kong

By Jerome A. Cohen

Here is a passionate legal endorsement of the forthcoming NPC Decision and consequent NPC Standing Committee legislation by Grenville Cross, one of the ablest pro-Beijing lawyers in Hong Kong. His orientation is that of the former government prosecutor that he was, rather than that of a defense counsel or neutral observer. CGTN, which is controlled by the Chinese Communist Party, notes that the opinions of Mr. Cross do not “necessarily” reflect its own. It identifies him as a law professor but fails to state where he teaches.

As in some of his previous relevant op eds, Mr. Cross focuses on stamping out violence and threats to public order and national security but seems much less concerned about the impact that such efforts can have on freedoms of expression. For example, I know what it means to use force to “disestablish, intimidate or overthrow the central government” but I don’t know what it means to criminalize activities of a non-forceful nature that oppose the central government. What “other serious criminal means”, i.e., other than force, does he (and the central government) have in mind?

A similar question arises regarding his enthusiasm for punishing support for HK’s secession from the PRC.

Also very troublesome is his belief that “it is also necessary to criminalize organizing or supporting the activities of any organization proscribed on national security grounds, including organizations affiliated with mainland bodies which have been banned by the central government for security reasons .” This is hardly a narrow definition of “criminal activity”. It could easily punish Hong Kong people for going to a protest meeting or march sponsored by a Hong Kong human rights organization if that organization has been cooperating with a Mainland organization that has been arbitrarily banned by the PRC, which often happens.

In the eyes of Mr. Cross, “all right-thinking people now recognize” that such prosecutions would guarantee full protection and a safe future to Hong Kong’s people. He apparently only knows “right-thinking people”, not “rights-thinking people”! This Cross is too much to bear!

My take on Beijing’s draft Decision on Hong Kong’s national security legislation

By Jerome A. Cohen

1. What may be driving Beijing’s draft Decision?

For the past five years, perhaps because I focus on Beijing’s domestic repression, I have inevitably accentuated the negative in appraising assessments of the PRC’s rising power. The other day I wrote that the Party’s new NPC action to authorize operation of its secret police in Hong Kong is an act of desperation. But I would not characterize it as foolhardy, as have some.

The situation in Hong Kong, from Beijing’s viewpoint, was steadily getting worse, despite the pause in protests occasioned by Covid-19. If allowed to fester without any attempt to suppress it, prospects for the autumn promised to see Hong Kong move further out of PRC control. Unless something was done, democratic politicians were likely to win the September Leg Co election. Measures taken to suspend or postpone the election or to again prevent popular candidates from seeking election or taking office would be sure to inspire huge crowds to reenter the streets if, as appears likely, the virus no longer inhibits public protests by then. Even if pro-Beijing politicians won the election and continued to control Leg Co, they could not be counted on to enact Article 23 legislation, as long experience has demonstrated. Bold central action now, while fear of the virus keeps people at home, might well be the least unfavorable option open to the leadership.

What Beijing has done is to reverse last summer’s humiliating defeat over its failure to have Hong Kong enact extradition/rendition measures that would have transferred some people in Hong Kong to the Mainland’s system of arbitrary detention and criminal injustice. It has done so by taking the Mainland’s system of arbitrary detention and criminal injustice to all of Hong Kong! Article 4 of the draft NPC Decision promises the establishment in Hong Kong by “relevant national security organs” of “agencies” that will improve “enforcement mechanisms” to guarantee national security in terms that the Ministry of Public Security and the Ministry of National Security have made well-known throughout the rest of China. The “final solution”, to invoke a sinister Hitlerian term, is the acceleration of Hong Kong’s transformation into “another Chinese city” long before 2047. This is already proving to be a costly gamble for Beijing, but nothing ventured, nothing gained!

2.  What do we know about the process regarding the draft Decision?

Some interesting relevant tidbits have emerged in recent hours. Apparently the law or laws that the Standing Committee is responsible for drafting in accordance with the not yet approved Decision are well under way.

But has the Basic Law Committee that was established to advise the Standing Committee already been consulted about the text? Prof. Albert Chen of Hong Kong University Law School, a brilliant scholar who has been a member of the Basic Law Committee since its inception, has been quoted in the press as predicting that the anticipated legislation will have broader scope than Article 23 and has appropriately cautioned against the danger that the text may easily be expanded to suppress “political opponents, dissidents, media, educators, intellectuals and so on”. The draft Decision reportedly came as a surprise to him, and I have seen no indication that the Basic Law Committee has yet been convened.

Various pro-Beijing Hong Kong political figures have recently spoken out with ostensible knowledge of the contemplated legislation, but with widely varying predictions of what offenses it will cover. Yet, like the Politburo leader responsible for Hong Kong affairs, they offer assurances that the contemplated legislation will be surgically applied to affect only its supposedly circumscribed targets, allegedly only a small group.

3.  What are the legal and human rights implications?

Here’s an excellent analysis from the NPC Observer of the Draft NPC Decision on Hong Kong. It highlights the serious legal challenges that the draft Decision presents to a conventional interpretation of the Basic Law and also the anticipated rationalizations for overcoming them, at least to the satisfaction of pro-Beijing advocates. In the end, it concludes, as I did in a brief earlier blog, that, given the structure of the PRC constitutional/legal system and the provisions of the Basic Law, the NPC Standing Committee has the power to say that the law is whatever it wishes it to be. So much for the protections supposedly guaranteed by PRC domestic law, including its reign over Hong Kong!

This does not relieve the central government and the Party of charges that the Decision and the legislation will violate the PRC’s obligations under the 1984 UK-PRC Joint Declaration on Hong Kong, including its pledge that Hong Kong will continue to be protected by the International Covenant on Civil and Political Rights (ICCPR) until the Joint Declaration expires in 2047. Nor does it free Beijing from charges that the Decision and legislation may result in violations of the PRC’s broader international human rights obligations.

Apparently to provide assurance that the agents of the Ministry of National Security and the Ministry of Public Security who will now be authorized to openly operate in Hong Kong will not run amok and usurp the role of the Hong Kong police, it has been suggested that the Hong Kong government may revive the Special Branch unit of the local police that was abolished before the 1997 Handover by the UK to the PRC. The vague language of the draft Decision foreshadows this.

Knowledgeable observers will take such assurances for what they are worth.

4.  What is to be done?

What is to be done in response to Beijing’s sudden mortal wound to Hong Kong’s promised “high degree of autonomy”? People should read this excellent statement by Human Rights in China and its very able executive director, my NYU Law School colleague Professor Sharon Hom. It provides the best answer to date. This should stimulate further creative thinking. For example, an effort could be made to cancel or at least postpone the 2020 Olympics in China.

Saturday’s Washington Post editorial suggests that selective resort to certain U.S. sanctions made available by existing American legislation would seem desirable and that the sanctions that would be authorized by a new proposal to be considered by the Senate would add to the possibilities without invoking the nuclear option of entirely eliminating Hong Kong’s special trade and investment status. As the Magnitsky Act experience shows, however, such sanctions are never invoked against the one PRC official we all know should be the target — the great dictator.

But political and diplomatic measures can be taken at the G-7 and other major forums. Despite the PRC’s veto in the Security Council, even U.N. meetings and those of other international institutions can become occasions for multilateral, not merely unilateral, denunciations. 

Surely, Hong Kong’s protection under the ICCPR should be brought into play. But all this requires effective allied cooperation and, above all, vigorous activism on the part of the UK, which is the treaty partner whose expectations are being violated by the PRC.  

Beijing’s agenda to enact national security legislation governing Hong Kong: some initial thoughts

By Jerome A. Cohen

Obviously the current plan to enact national security legislation governing Hong Kong is not Beijing’s preferred way but is a mark of desperation. If it had been attempted much earlier in the post-’97 period, especially before the Article 23 fiasco in Hong Kong in 2003, it might have passed legal muster without creating as much consternation as it does now.

At this time, however, coming in the wake of the failures to enact relevant security legislation via Article 23 and the inability of LegCo to do so in the future on its own, Beijing’s current move certainly looks like a clever trick that inevitably inspires even greater popular distrust than ever in the NPC Standing Committee’s interpretations of the Basic Law.

The NPC Standing Committee will undoubtedly prevail in technical PRC legal terms, given the wording and structure of the Basic Law, the provisions for its interpretation and the way those provisions have been applied in recent years. But the political costs to the Central Government and the people of Hong Kong will be very high.

This will not be the formal end of “One Country Two Systems,” but it is surely a mortal wound to the living, meaningful system that many had been misled into hoping for. The people of Hong Kong should prepare to cope with the varieties of arbitrary detention that have been inflicted on compatriots elsewhere in China who have tried to exercise freedoms of expression. The Ministry of Public Security and the Ministry of National Security will no longer have to operate secretly in the SAR. Both will soon have agencies formally and openly established there. Their promised “enforcement mechanisms” can be relied upon to eliminate dissent in Hong Kong almost as efficiently as they have done on the Mainland.

There are many ways that the United States, the UK and other democratic countries can strongly react to Beijing’s latest legal legerdemain. Perhaps Washington will invoke some aspects of existing federal legislation relating to Hong Kong, but I hope it does not act in ways that will penalize Hong Kong’s already long-suffering people rather than the regime that increasingly dictates to them.

How to read the 4/18 mass arrests in Hong Kong

By Jerome A. Cohen

Saturday’s mass arrests in Hong Kong, following the bold assertion by Beijing’s Liaison Office of comprehensive power over the PRC’s Special Administrative Region, represent a stunning advance toward the Chinese Government’s demolition of One Country, Two Systems in fact, if not in name. 

The people of Hong Kong are very unlikely to accept this further erosion of “the high degree of autonomy” that they were promised when the PRC and the UK concluded the Joint Declaration on Hong Kong’s future in 1984 and China enacted the Basic Law for Hong Kong in 1990. 

This week’s actions may well be an attempt by Beijing to provoke a broad popular reaction that will then provide an excuse not only to finally bulldoze success passing controversial national security legislation in HK under Basic Law Article 23, but also to call off the crucial September election scheduled for HK’s Legislative Council. Indeed, another Art. 23 campaign is sure to elicit an even stronger reaction than we saw last year in response to PRC efforts to pass legislation authorizing extradition/rendition of alleged criminal suspects for “justice” on the Mainland. Unless, of course, HKG restrictions regarding Covid-19 inhibit people from going into the streets, which is what the PRC is surely counting on. 

Some observers have wisely advised the public to keep cool and remain patient, if possible, and virus restrictions may make this probable, by and large. Whether or not there is street reaction, there should be no letup, of course, in exposing the Chinese Communist Party’s nefarious actions. The Party undoubtedly has other actions up its sleeve in its effort to squelch Hong Kong’s striving for democracy.

With all the pro-HKG talk about the importance of equality before the law in the hope of justifying the mass prosecution of the SAR’s traditional democratic figures, I believe the defense will emphasize the inequality demonstrated in singling out these 15 leaders while not prosecuting the hordes of others who also technically violated the anti-protest regulations in question. The prosecution will have to show that the 15 each not only took part but also led or helped organize last year’s protests and that others not prosecuted do not share that responsibility. These criminal trials will not be short and simple, and one should not underestimate the preparation and competence of the HK Department of Justice professionals, however reluctant some of them may be to pursue these cases. 

My take on China’s reaction to Hong Kong High Court’s ruling declaring the mask ban unconstitutional under the PRC’s Basic Law

By Jerome A. Cohen

Yesterday, the spokesperson of the National People’s Congress Standing Committee (NPCSC) Legal Affairs Commission, Mr. Zang, responded to the HK court’s ruling by announcing that only the NPCSC can deal with Basic Law constitutional questions. The Central Hong Kong and Macao office’s Liaison Office in HK made a statement too, also suggesting a similar argument.

This view seems plainly contrary to the system established under Article 158 of the Basic Law, which contemplates the possible consideration of constitutional questions by the HK courts prior to final determination by the NPCSC, as has occurred previously.

Zang’s reference to Article 160 but failure to mention Article 158 seems an attempt to read out of the Basic Law one of its major premises. That would be roughly analogous to a staff member of the US Supreme Court announcing that American state courts can no longer consider federal Constitutional issues and that such issues are only to be decided by the US Supreme Court in Washington.

It was bad enough when in practice some years ago the HK Government successfully asked the NPCSC to dispose of certain key legal issues before the HK courts had an opportunity to consider them. Will there now be an attempt to uniformly deny the HK courts any opportunity to consider such issues through an NPCSC reinterpretation that totally emasculates all but the first paragraph of Art. 158? I doubt it. The NPCSC is likely to content itself with invalidating the HK court decision without denying HK courts the right to have made it. But let’s see!

Another issue is whether the NPCSC will wait until its December scheduled session to opine or, because of the emergency and legal confusion now generated in HK, it will urgently deal with the case in the immediate future. I would not be surprised to see the latter occur.

Hong Kong High Court rejects "mask ban" as "unconstitutional" and Beijing reacts instantly!

Jerome A. Cohen

While it’s possible that the statement just issued by the spokesperson of the National People’s Congress Standing Committee’s Legal Work Committee is merely designed to test the reactions in Hong Kong and elsewhere, that could have been done less riskily by Xinhua or various PRC media. This is rather official and seems to forecast NPCSC action invalidating the Hong Kong Court decision, which would be incendiary. It may be designed simply to warn all about what is to come as soon as the NPCSC’s ducks can be placed in order and to soften the severe public shock by anticipating it.

There is the curious final sentence stating that the legal work committee is studying the opinions and proposals put forth by some NPC delegates. This may only mean NPCSC deliberations are underway but it might leave open the way to forestall or avoid an invalidating NPCSC interpretation if reactions to the spokesperson’s announcement are severe enough.

The Hong Kong High Court’s judgment on the mask ban is a splendid example of what it means to put “government under law”

Jerome A. Cohen

Yesterday the Hong Kong High Court declared the Government’s mask ban unconstitutional. Here’s the full text of the judgment.

It is a great and important opinion by the two-judge court of first instance. It is a supreme example of the excellence of the Hong Kong court system and the flesh that it puts on the general bones of the rule of law. It demonstrates “government under law” in a vivid, albeit lengthy, way that is wholly alien to the People’s Republic of China. The reasoning and analysis on display here are a tribute to the Hong Kong Judiciary and to the members of the Bar and the Law Society who facilitated the Court’s remarkable response in so short a time.

Of particular interest are the Court’s references to the International Covenant on Civil and Political Rights, the UN Human Rights Committee and the European Court of Human Rights, although the decision is based on traditional English and Anglo-American legal principles and practices. It is inconceivable that a PRC court might invalidate a formally promulgated government norm on the ground that it constitutes an insufficiently justified infringement on freedoms of expression. Indeed, Chinese courts are not even allowed to consider any Constitutional issues. What a contrast with the Taiwan Constitutional Court that in recent years has done so much to protect political and civil rights!