More about the prosecution of the "Hong Kong 12"

By Jerome A. Cohen

Now that the arrests of the Hong Kong 12 have been approved, after 37 days of incommunicado detention, there is not likely to be much news about the case emanating from the PRC for a few months, unless international pressure stimulates Beijing to a quicker than usual response. But the pot continues to boil on the HK side. 

Yesterday’s Wall Street Journal has a good article entitled “China Snatched the ‘Hong Kong 12’ Off a Speedboat, Giving Protest Movement New Life.” It reports that families of the detainees continue to call for their return to HK (instead of being prosecuted in the mainland), a fruitless demand at this point. More interestingly, it notes that the families claim that it took five days before they learned that the suspects were being held in Shenzhen and quotes the father of one of the suspects to the effect that the families have still been told nothing about their case, apparently either by the HKG or PRC officials. 

It has previously been reported that the PRC has not allowed PRC lawyers retained by the families to enter the case and indeed has used the usual methods to prevent their participation. More recent, however, is the father’s claim that the PRC lawyers reportedly imposed on the suspects “have never contacted us. They wouldn’t even tell us the lawyers’ names.”  

It is quite possible that no lawyers have yet been assigned to the case, since the interrogations of the suspects and investigation are apparently not yet complete. Usually in the PRC, as a matter of practice, defense lawyers are not permitted to enter the case at least until the police have obtained confessions and believe the basis for indictment is well-prepared. At that point, there is little that lawyers can do to advise the suspects except to prepare them for what is to come, and the possibilities for lawyers to conduct their own investigation from witnesses and obtain other relevant defense information are highly restricted. Even then, lawyers are often not permitted to try to act until after indictment, and only cursorily, before being permitted to appear in the eventual trial, largely as window dressing.

In the meantime, HK attention is growing with respect to reports that the HK police may have played a secret but active role in alerting PRC police colleagues to the suspects’ plan for escape from HK to Taiwan. It will be important to see how the story unfolds.

Henry Litton's Attack on HK Courts

By Jerome A. Cohen

Here is a recent attack on HK courts, by one of its most well-known retired judges. Henry Litton, formerly of the Court of Final Appeal, is a respected and able legal analyst who publicly called for the establishment of an independent commission to deal with the city’s chaos in the summer of 2019, a call that was not acted upon. Since then he has increasingly been critical of opponents of the HKG’s turn toward repression and implementation of the new NSL. Almost in tandem with former HK prosecutor Grenville Cross and former police investigator Tony Kwok, he has issued various op eds seeking to “reform” HK’s judicial system. It reminds me of the Mainland’s hoary admonitions that police, prosecutors and judges should operate like a single fist to suppress the opposition.

 This op-ed goes further than previous criticisms. It condemns the HK appellate court handling the region’s first NSL prosecution even though the court made a decision that the pro-Beijing forces deem correct! Why? Because Mr. Litton claims that the judges should not have given extensive consideration to the constitutional challenges that the President of the HK Bar Association and his colleagues launched against relevant provisions of the NSL on behalf of the accused, despite the fact that the judges ended by rejecting those challenges.

What seems to upset Litton is that the judges carefully considered and publicly commented on the arguments of defense lawyers who, he maintains, were “seeking to impeach national legislation in the regional courts.” This, rather than the lack of judicial clarity ostensibly revealed in the court’s judgment, seems to be what Litton mainly condemns. At stake is the legal power of HK courts to consider the constitutionality of a new PRC law specifically enacted for HK that cries out for invalidation in various respects. As Litton points out, the NSL itself makes clear that Beijing mistrusts the independence of HK judges, which is why so much propaganda is being mobilized to further curb their independence in various ways.

Updates on the Case of the Hong Kong 12

By Jerome A. Cohen

Here is the SCMP’s rapid reporting on the case of the Hong Kong 12. Mainland Chinese authorities have accused them of illegal border crossing and organizing crime. This is just the closing of the first phase of the long criminal process that lies ahead. We now know at least a few things about the case.

The “HK 12” were apparently not subjected to “residential surveillance at a designated location” on suspicion of national security violations. That could have kept them in incommunicado detention for up to six months before the regular criminal process began. Indeed, as the charge approved by the procuracy confirms, they are not being charged with national security violations under either PRC national law or the new NSL for HK, as some had speculated they might be and as a Wolf Warrior of the Ministry of Foreign Affairs seemed to suggest would be appropriate. That would have raised legal complexities of a controversial nature as well as international political temperatures.

Instead, the case seems en route to being treated as a regular criminal case of illegal border crossing, a crime, to be sure, but not ordinarily a major one. Of course, after up to seven more months or so of police investigation, the police, when they seek the procuracy’s approval of indictments, may decide to change the charges to harsher offenses or add further offenses to the current charge of illegal entry. The procuracy might or might not agree or may, on its own volition, change or add to the charges. But it is unlikely that this will happen, especially since the local Party political-legal committee, under central Party guidance, has undoubtedly arranged matters between police and procurators (prosecutors) so far as the evidence has been revealed.

At this stage, it is likely that ten of the twelve will receive one-year sentences after conviction by the local district or even intermediate court, with the sentence running from the date of detention. That sentence can be suspended or reduced, however, depending on a variety of circumstances including the extent of the defendant’s confession, contrition and cooperation with the investigation as well as the defendant’s health and willingness to forego an appeal.

The two accused of organizing may well draw three-year sentences and possibly longer ones, although, again, much depends on their post-detention behavior and physical and mental condition. The most immediate challenge for the PRC is how to deal with the embarrassment created by the denial of access to defense lawyers chosen by the families of the suspects. Further steps may be taken to silence the lawyers chosen by the families. Those can range from detaining the would-be lawyers, threatening them with disbarment and closing of their law firms as well as harm to their families etc. The authorities will surely attempt to deny the would-be lawyers further access to the families and the media. The Party may decide to have the lawyers chosen by the police put on a show designed to create a more favorable impression than usual. Possibly the families may be allowed a visit or a representative of the HK government might even be permitted to visit, but the latter seems unlikely. Too many departures from the usual practice might be seen as setting unfavorable precedents for future cases and not establishing sufficient deterrent against future offenses of this type. 

At this point there is not much that any defense lawyer can accomplish in a case of this nature except to perhaps reduce the likelihood of any further torture and coerced confessions by meeting with and observing the suspect, if only in the circumscribed circumstances allowed. Eventually, if permitted, defense lawyers might prove helpful at whatever type of “trial” is allowed, and this will be another challenge for the Party. 

Hong Kong Further Erodes Freedom of Speech

By Jerome A. Cohen

Tam Tak-chi. Photo: Tam Tak-chi, via Facebook.

Earlier this week, the activist Tam Tak-chi was denied bail after being charged with “uttering seditious words and disorderly conduct.” Tam is reportedly the first person charged with sedition in Hong Kong since its 1997 “handover” to China. There is a risk for the Hong Kong government in bringing this case under pre-existing local sedition legislation, since the facts cry out for judicial protection of speech, and the HK courts may seize the occasion to demonstrate that, no matter the constraints imposed on them by the new National Security Law (NSL), when not under the NSL, they still maintain their independence despite HK’s newly-repressive climate. Two points are worth emphasizing.

First, it would be interesting to know how the decision to prosecute was made in the Department of Justice (DOJ), specifically whether it was approved by the current Director of Public Prosecutions, who has announced his resignation as of the end of the year because of apparent DOJ refusal to allow him, rather than the special NSL group newly-established within the office, to deal with NSL cases. He reportedly hasn’t even been allowed to know about NSL decisions concerning prosecution until they have been made. I wonder how optimistic he is about the successful prosecution of Tam under ordinary, pre-NSL HK law.

The second point to focus on is the denial of bail, which to me is the most immediately disturbing aspect of the case. I hope to know what’s been made public about the denial of bail and whether the bail appeal process has now run its course. The outcome of the legal contest that lies ahead is uncertain and will tell us a lot about the impact of recent events on HK’s judiciary and the extent to which Beijing will tolerate HK judges’ independent responses to the new challenges. In the interim, however, this HK political activist will be detained in jail, at least for two more months, and is already being punished long before it is determined whether he deserves it. This certainly prevents him from further exercising freedom of speech, inhibits his full opportunity to fashion his legal defense and disrupts his normal life and work and that of his family and colleagues. The prosecution power is a dreadful one.

China's Continuing Fear of the Nobel Peace Prize

By Jerome A. Cohen

Last week, China’s Foreign Minister Wang Yi visited Norway to resume talks on a bilateral free-trade agreement, and also to warn against giving the Nobel Peace Prize to Hong Kong protesters. Ironically, Wang said that the PRC does not “want to see anyone politicize the Nobel Peace Prize.” Wang is an intelligent, sophisticated and handsome representative for China in the world, but increasingly nationalistic and prone to losing his temper at press conferences in a way that makes him look like the chief of the PRC’s diplomatic “wolf warriors”, which indeed he nominally is.  

The argument that award of the Prize to China’s international human rights warriors is “interference in China’s internal affairs” is no more persuasive today than in the past. International human rights, which the PRC selectively endorses and invokes in its dealings with other states, is by definition not an exclusively internal matter for any state. The PRC’s continued repetition of this hollow nonsense is another example of its increasing attempts to interfere with the internal and external affairs of other countries. Nothing would be more appropriate this year than for the Nobel Peace Prize to be awarded to one or more Hong Kong organizations that have been striving to protect human rights in Hong Kong and the Mainland. In addition to the obvious candidates, the Hong Kong Bar Association should be considered. Its barristers are the last line of legal defense for the city’s human rights. 

However, award of the NPP has often seemed a puzzle, if not a disappointment. I thought Kissinger’s sharing it with his North Vietnamese counterpart was odd, and Obama got it before he had a chance to do anything to earn it. Taiwan’s former President Ma Ying-jeou deserved to be considered after he started his second term as president because of the extraordinary accomplishment of concluding some 20 cross-strait agreements with a PRC that had always maintained it would never conclude agreements on an equal footing with a mere province. I said so when in 2012 Taiwan media asked how I evaluated his first-term achievements. That didn’t get Ma the Prize, but it did anger some other former students who have long advocated Taiwan independence! 

Sadly, the PRC has reneged on implementation of some of these agreements with Taiwan since the 2016 election of current President Tsai Ing-wen because of her refusal to endorse the so-called “1992 Consensus,” according to which Taiwan is part of China, although the two sides never agreed which of the contending governments should be deemed the representative of that “China.”

Virtual CFR Meeting on Hong Kong—Autonomy and National Security

By Jerome A. Cohen

In the last few months, Hong Kong has undergone significant and troubling changes. The new National Security Law (NSL) has already had a huge impact on many aspects of society, and more changes are likely to come. On Wednesday, the Council on Foreign Relations held a virtual meeting moderated by Nancy Yao Maasbach, and I joined Victoria Tin-bor Hui and Christopher Patten to discuss the NSL, the delayed Legislative Council elections, and how history has impacted the current situation. You can watch the recording here.

The NPCSC's Telling Silence

By Jerome A. Cohen

This Xinhua release in today’s China Daily is, of course, of great interest, if only because of its silence about the NPCSC’s failure to mention whether the four democratic Legislative Council (LegCo) members who have been banned from re-election will be allowed to serve for the remaining one-year minimum of the existing LegCo term. The NPCSC’s silence on this issue means that the four will be permitted to continue for the extended year. This is the bone that Carrie Lam has thrown in an attempt to pacify the masses for the postponement of September’s election and the disqualification of the four from future service. Politically this may seem a shrewd move since the four cannot do much damage in the current LegCo, which remains under government control. As members of a popular majority in the next LegCo, they might have been a strong voice for democracy. Legally and logically, however, the decision seems inconsistent and a travesty exposing the real reasons for the disqualification.

Worthy of notice is the penultimate paragraph of the Xinhua story, which reports the full support given to the NPCSC’s newest decision by the “founding president of the  Small and Medium Law Firms Association of Hong Kong”. This is an organization I have never heard of and may have been recently created. Perhaps its support is designed to counter the embarrassment caused by the failures of both the HK Bar Association and the HK Law Society to voice similar support.

In this connection it is useful to note another action of the NPCSC reported in today’s China Daily – the decision to allow HK and Macao lawyers to practice law in the nine major cities of Guangdong Province once they qualify like Mainland lawyers. This won’t make the local competition happy but gives an incentive to HK lawyers to support “the second Handover”.

Grenville Cross for the HKG's Defense...or Offense?

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”?

Should the UN Increase Its Involvement in Hong Kong?

By Jerome A. Cohen

This is an excellent essay by Professor Yanghee Lee, former UN special rapporteur on Human Rights in Myanmar and former chair of the UN Committee on the Rights of the Child, on the dire situation in Hong Kong and the human rights violations that the new National Security Law may bring. It is wonderful to hear from a Korean expert on Hong Kong, especially one who has had such important relevant experience and has come up with a constructive proposal for trying to cope with the increasingly explosive situation. 

In the article, Professor Lee suggests that the United Nations could create either a special rapporteur or special envoy for human rights in Hong Kong. It would be excellent if the UN were to make some direct effort to improve the situation. The PRC claims that Hong Kong’s unrest is a matter of national security. However, it is also obviously a matter of international security, although the PRC vigorously resists this truth. Unfortunately, a PRC veto would frustrate any effort to invoke the concern of the UN Security Council. Eventually, the UN Working Group on Arbitrary Detention will confirm the PRC’s anticipated violations of the human rights of people victimized under the forthcoming NSL. But that plainly will be too little and too late, as it so often has been. What to do now?

Although a special rapporteur for HK would be splendid, Professor Lee, herself a former special rapporteur, maintains that this appointment would have to be approved by the UN Human Rights Council and may run into obstacles. Also, she does not explicitly discuss the politics of approval at a time when the US has withdrawn from the HRC, and the PRC wields prominent influence over the Council. Certainly, an attempt should be made to obtain HRC approval, if only to embarrass the PRC and many of the other oppressive governments that take part in the HRC.

The special envoy possibility is one that is rarely discussed outside expert circles and, although perhaps less immediately effective in informing public opinion, is surely worth trying. Here, Professor Lee points out, approval must come from the UN Secretary General. Of course, the PRC has a good deal of influence in the Secretary General’s Office, but so too does the US as well as the other liberal democracies. It would be good to hear the appraisal of political observers about the current constellation of pressures in that office. It is sobering for outsiders to note the ongoing international struggle for influence over the much-criticized WHO Secretary General, who is about to deliver a commencement speech at Tsinghua University in Beijing.

Is there no possibility that the Office of the UN High Commissioner for Human Rights can be of assistance? Under some administrators it has played an important and encouraging role. 

The UN is an area where an immediate Western response might be made without awaiting the public appearance of the draft National Security Law, if a draft is actually going to appear before the NSL is foisted upon HK’s fearful and divided population and the many foreigners who interact with it.  

Admirable Advocate Martin Lee

By Jerome A. Cohen

I was asked by a journalist about Martin, and thought I should share what I know about this outstanding lawyer/advocate. 

Martin Lee

I have known Martin slightly and admired him hugely for decades as both a lawyer and public figure and have seen him on his recent visits to the US, often accompanied by Anson Chan and on the latest visit by Jimmy Lai. On his last visit to NY I invited him and Jimmy Lai to speak at the round table that I run at the Council on Foreign Relations concerning US Foreign Policy and the Rule of Law in Asia. Martin, even at 80, was a tiger. 

Here’s an anecdote about Martin that may be an instructive one today, given the current struggle over the Basic Law. Not long after the 1997 Handover, I was speaking at a business conference in Shanghai and, to my surprise, was invited by Hong Kong’s first Chief Executive, C.H. Tung, to have breakfast with him. I had only had one previous conversation with CH but we had a good mutual friend. CH is a likeable person and was a strong supporter of improving relations between the Council on Foreign Relations (CFR), where I then directed Asian studies, and Hong Kong. We both had been enthusiastic about the idea of setting up a CFR branch in Hong Kong but that idea didn’t make progress once, in our previous conversation, I told CH that CFR was open to people of different viewpoints and that Martin Lee would certainly be eligible for membership in a Hong Kong branch. CH made clear that the prospect of Martin’s membership diminished his enthusiasm for the proposal.

Despite that initial disappointment, at our Shanghai breakfast, I thought I would try out another useful idea on CH.

The Basic Law provides for a Basic Law Committee (BLC) to advise the Standing Committee of the National People’s Congress (NPCSC) on its responsibility for interpreting the Basic Law. Its twelve members, six from Hong Kong and six from the Mainland, include legal experts from both jurisdictions. It was unclear, however, what role the BLC was actually to play. One possibility was that it might have been developed into a serious public tribunal for recommending appropriate interpretations of the Basic Law to the NPCSC, following procedures analogous to those of the Judicial Committee of the Privy Council in the House of Lords that had been the highest authority for dealing with UK constitutional questions relating to Hong Kong while Hong Kong was a colony. The BLC might have established a practice of holding judicial-type hearings, preferably in public, at which varying aspects of the Basic Law issues in question might be adequately ventilated by legal and policy experts before the BLC made its recommendations to the NPCSC. Indeed, I suggested, a custom could even be established by the NPCSC whereby it accepted the BLC recommendations. Such an implementation of the Basic Law would maximize the confidence of Hong Kong’s people that the Basic Law would be properly interpreted and the Sino-British Joint Declaration properly carried out in accordance with the legitimate expectations generated by the language of those documents.

CH patiently heard my suggestion but then immediately responded: ”Ah, that would only give Martin Lee and his kind an opportunity to make more trouble.”

I was disappointed because it seemed evident that the key to the success of One Country, Two Systems would be the arrangements for faithful interpretation of the Joint Declaration and the Basic Law. The BLC could have become an important vehicle for building confidence that NPCSC decisions would not be merely the product of secret, political Beijing backrooms, but of a transparent, legitimate process that fulfilled the expectations generated by the Joint Declaration and the Basic Law. This is what is at stake as we await the results of the NPCSC deliberations that will determine the content of the forthcoming national security legislation for Hong Kong. Will the BLC even be consulted and at what stage of the process that has been going on for some time? Martin Lee, it should be noted, was not designated to be one of the Hong Kong members of the BLC. So much for troublemakers! 

Hong Kong Human Rights and Democracy Act: Why Should Americans care?

By Jerome A. Cohen

We live by symbols, and enactment of the Hong Kong Human Rights and Democracy Act would be a strong expression of American support for the protesters in Hong Kong. The United States Government is limited in its capacity to influence events in Hong Kong. We cannot go to war to “save” Hong Kong’s democratic protesters, but adoption of this new law would be one of several peaceful steps that the U.S. Government can take to deter the PRC from further oppression in Hong Kong.

Of course, it would be a sad step if the U.S. Government ever had to cancel Hong Kong’s special status, but the newly-authorized capacity to do so would be a powerful incentive for the PRC not to take steps to further shrink Hong Kong’s declining autonomy. Hong Kong’s current special privileged status rests upon the assumption that it enjoys a high degree of autonomy, as solemnly promised by the PRC in the Joint Declaration with the UK and the PRC’s Basic Law for Hong Kong.

If it does not, the basis for the special treatment disappears. I believe the President is likely to sign the bill, which gives him broad discretion in how to apply it. If he refuses, the Congress will override his veto. He would then be under great political pressure to implement its provisions, however cautiously, and Congress itself, of course, will have continuing freedom to react.

Hong Kong, China and the United States: A Major International Issue

By Jerome A. Cohen

As widely expected, Hong Kong Chief Executive Carrie Lam’s very late withdrawal of the notorious extradition bill has had no pacifying effect. Perhaps it has even exacerbated the situation by demonstrating how reluctant the Hong Kong government and the Central Government are to make any reasonable concession to local public opinion. They are still relying on the attrition strategy that eventually ended the 2014 Umbrella Movement. They hope that even the most dedicated protesters will eventually wilt from exhaustion and despair.

Events in Hong Kong may someday add to the internal pressures for improving the Mainland system of criminal justice in practice as well as law but any significant changes will have to await a radical shift in the policies of the Chinese Communist Party, and that shift seems far from today’s horizon.

The currently contemplated Hong Kong Human Rights and Democracy Act in the United States is immediately of symbolic importance but will also add to American leverage over Beijing in practical terms because of its threat to eliminate Hong Kong’s special status under American law. The so called “nuclear option” it authorizes would significantly add to Hong Kong’s protection against the PRC’s use of military force to govern Hong Kong, but, as the “nuclear” name suggests, actual resort to this deterrent would substantially harm Hong Kong economically in order to “save” it politically.

It reminds me of the annual Congressional Most Favored Nation (MFN) review of China’s human rights actions that took place in the 1990s before Congress agreed to approve PRC entry into the WTO. Many in America regret the U.S. surrender of that option to withdraw the MFN access to the U.S. market of a China whose exports required it. The annual threat to deny the PRC this MFN treatment was one of the few tools the U.S. Government had to effectively express its support for human rights in China. While not as profound in its impact on China as the withdrawal of MFN might have been, the proposed Hong Kong Human Rights and Democracy Act would nevertheless  threaten to inflict serious damage on the PRC’s national economy as well as on Hong Kong by ending Hong Kong’s special customs status.

Hong Kong is surely not a matter of China’s exclusive domestic concern, as the PRC claims, but obviously a matter of great and legitimate international importance for many reasons. Not the least is the applicability of the International Covenant on Civil and Political Rights (ICCPR) to Hong Kong and the PRC’s obligations under various human rights treaties it has ratified, including the Convention against Torture and the International Covenant on Economic Social and Cultural Rights.

Hong Kong’s protesters are today’s greatest challenge to PRC efforts to persuade the world of its “soft power.” The outrageous suppressions of freedom, human rights and the rule of law throughout the Mainland and even the increasingly well-known repression in China’s Xinjiang as well as Tibet have not had as big an impact on world opinion as present events in Hong Kong. It is time for the PRC to recognize this, and it is time for President Trump to consistently communicate this to Beijing in public as well as in private.