The US bill attacking Hong Kong’s rule of law will not succeed

Although the judiciary has sometimes faced criticism over its handling of national security and protest-related cases, this is misplaced
A US bill targeting 49 Hong Kong judges, prosecutors and officials is a dirty attack on the rule of law by people who should know better

Grenville Cross

Published: 8:30pm, 7 Nov 2023

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Since 1997, Hong Kong’s success has been underpinned by its legal system. Whereas independent prosecutors decide if there is a reasonable prospect of conviction, impartial judges preside at trials. The Basic Law guarantees the independence of judges (Article 85), and the judicial oath requires them to determine cases “without fear or favour, self-interest or deceit”.

Although the judiciary has sometimes faced criticism over its handling of national security and protest-related cases, this is invariably misplaced. Suspects are only convicted if their guilt is proved beyond reasonable doubt, and defendants can challenge their convictions on appeal.

Whereas, for example, seven pro-democracy activists, including media magnate Jimmy Lai Chee-ying and barrister Martin Lee Chu-ming, were convicted in 2021 of organising an unauthorised assembly in 2019, the Court of Appeal, with typical robustness, quashed their convictions in August.

The Guardian called its ruling “the latest in a string of defeats for the Hong Kong government in cases related to the pro-democracy movement”.

The judiciary, which has 11 eminent overseas jurists from Australia, Canada and the United Kingdom sitting as non-permanent judges on the Court of Final Appeal, has ensured the rule of law has thrived since 1997, and it is rightly regarded as one of the most professional in the Asia-Pacific region.

In October, when the World Justice Project (WJP) released its Rule of Law Index for 2023, it came as no surprise that Hong Kong was ranked 23rd out of the 142 jurisdictions surveyed. The WJP emerged from the American Bar Association in 2006, and became an independent, non-profit organisation in 2009. It is now the world’s leading source of independent, original data on the rule of law, and its assessments are valued by governments, businesses and civil society.

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Hong Kong’s top 25 rating is attributable not only to its judiciary, but also to its prosecution service and the wider legal profession. They have upheld legal standards after the turbulence of 2019-20, and Hong Kong puts many other places in the shade. For example, the US was placed 26th in the Rule of Law Index, and a slew of European countries were well behind, including Italy at 32nd, Poland at 36th and Greece at 47th.

It was therefore extraordinary that last week, a group of US lawmakers introduced a bill calling on the US government to impose punitive sanctions on 49 Hong Kong judges, magistrates, prosecutors, officials and even a private barrister. The sponsor, Young Kim, said the aim is to “hold the Hong Kong officials accountable for human rights violations” and show support for those “facing scrutiny under Beijing’s national security law”.

However packaged, the bill is a squalid attack on the rule of law by people who should know better. If successful, the bill could cripple Hong Kong’s legal system. It could not only deter lawyers from becoming judges (or prosecutors), but also intimidate existing judges.

Although the targeted judges and prosecutors, like other public officials the US has sanctioned, will undoubtedly continue to discharge their duties to the best of their ability, the bill, if enacted, would inevitably create a climate of fear throughout the legal world.

Although it is extraordinary that US politicians who supposedly believe in the “international rules-based order” could sink to such depths, there’s method in their madness. Their motivation is undoubtedly to weaken China by harming Hong Kong’s legal system, and they have tried this before.

Sanctions imposed by the US are nothing but war by other means

In May, when the US Congressional-Executive Committee on China (CECC) asked President Joe Biden to “consider imposing sanctions” on 29 judges involved in national security cases, he did not oblige. Kim’s bill, which is co-sponsored by three CECC members (Jeff Merkley, Dan Sullivan and Jim McGovern), is more sweeping, and even targets people who have not been involved in national security cases, like the private barrister who has only prosecuted public order cases.

Among those targeted are permanent and non-permanent judges of the Court of Final Appeal, including Chief Justice, Andrew Cheung Kui-nung. As some are British nationals, it will be intriguing to see if British Foreign Secretary James Cleverly springs to their defence. He announced in September that “Hong Kong’s courts remain independent”.

International Criminal Court prosecutor Fatou Bensouda in The Hague in 2018. When Fatou in 2020 began investigating whether US personnel had committed war crimes in Afghanistan, the Trump administration imposed sanctions on her and classified her as a “specially designated national”, along with terrorists. Photo: AP

Although Kim’s bill should never have seen the light of day, the US has recent form for abuse of this type, as then International Criminal Court (ICC) prosecutor Fatou Bensouda discovered in 2020. When Bensouda, in discharging her mandate under the Rome Statute, began investigating whether US personnel had committed war crimes in Afghanistan, then president Donald Trump imposed sanctions on her and one of her deputies, Phakiso Mochochoko.

They were classified as “specially designated nationals”, alongside terrorists and drug traffickers. Their assets were blocked, and they and their families were denied US visas.

However, they refused to be intimidated and continued with their work. Their courage should inspire anybody in Hong Kong who might feel intimidated by Kim’s bill.

Although Biden repealed the sanctions against the ICC officials in 2021, Trump’s behaviour caused the US reputational damage, which Kim’s bill can only compound. Whereas people naturally expect the US to set global standards, the bill spits in the face of the values America claims to cherish, including judicial independence.

Although Hong Kong is small, it knows how to stand up to bullies. It will defend its way of life come what may, and its officials will not succumb to threats. This latest attempt to harm the city is beneath contempt, and the bill’s sponsors have only succeeded in demeaning themselves.

Grenville Cross SC is a criminal justice analyst who served on the Executive Committee of the International Association of Prosecutors