The Spectator: 'The Supreme Court’s shameful statement on Hong Kong', Johnny Patterson

In a statement which will doubtless surprise the scores of lawyers, democratic politicians and human rights activists who are currently in jail awaiting show trials under Hong Kong’s National Security Law, the UK Supreme Court today made an announcement which is the best piece of free PR that Hong Kong’s Chief Executive Carrie Lam has had in years.

The President of the Supreme Court, Lord Reed, has issued a statement saying that UK judges will be staying on Hong Kong’s Court of Final Appeal and that ‘the judiciary in Hong Kong continues to act largely independently of government and their decisions continue to be consistent with the rule of law.’

Lord Reed is one of Britain’s foremost legal minds which is why it is so troubling that he seems either inadvertently, or perhaps even wilfully, blind to the variety of insidious ways that the rule of law in Hong Kong has been compromised in the last year. The idea that Hong Kong courts have ‘independence from government’ is no longer a meaningfully credible notion. By justifying the presence of British judges in the way that he has done, he is providing a veneer of legitimacy to a system which no longer deserves to be considered a bastion of the rule of law.

The Supreme Court's endorsement of the city’s rule of law is an utter embarrassment

Consider the facts. The Hong Kong Secretary of Justice decides charges sensitive National Security cases and the Hong Kong government decides on the judge. To make matters worse, there is a pre-vetted list of designated National Security Law judges. In National Security cases the law is now applied retrospectively, bail is the exception not the rule, and the presumption of innocence is no longer assumed. The process is pre-determined from start to finish. It cannot be described as the rule of law.

Lord Reed might argue that these are only a small minority of cases. But the new National Security Law era in Hong Kong has wider implications. For a start, with the free press and the legislature both now purged by Beijing, all the safeguards which historically protected Hong Kong’s independent judiciary have been erased. Beijing has total control over pretty much every lever of influence: executive, legislative, media, civil society and increasingly business. There is no balance of powers and so there is little hope that the judiciary will remain independent.

In the legal system, we can see this in practice. Beijing controls promotions. There is no transparency in the process, but everyone knows what the priorities are in the new post-National Security Law Hong Kong. The pro-Beijing press have taken to haranguing any judge who shows leniency.

All judges now undergo mandatory ‘National Security Law’ training where mainland legal experts lecture seasoned judges about the new rules of the game. High court justices meanwhile are routinely invited to teach courses in Beijing University and the CCP school in Shanghai. The National Security apparatus has a file on every judge in Hong Kong. If you are a young judge with a sense of self-preservation, and you are given a politically sensitive case, how do you decide?

A similar process is taking place within the wider legal community, with Carrie Lam recently warning the Law Society to stay out of politics or risk being disbanded. The Justice Secretary recently intervened in the law societies' elections to offer incentives to Hong Kong solicitors who voted for pro-establishment candidates. The adoption of legislation that will allow solicitors in the Justice Department to be rewarded with the appointment of Senior Counsel without having served as barristers will also strengthen the power of the Hong Kong government to reward those in the legal community loyal to the regime.

Anyone who has considered the use of national security legislation in mainland China knows that it is naïve to imagine that the erosion of the rule of law will be limited only to the political sphere. In a recent paper for Harvard Kennedy School, Dennis Kwok, a former Hong Kong lawmaker who is now in exile, underlined the ways that it is likely that the National Security Law is likely to operate. He writes about the breadth of the definition of national security in mainland China where the National Security Law requires all actors to safeguard ‘key economic interests including industries vital to the national economy, key industrial sectors, key infrastructure projects, and key construction projects’ including finance, food safety, technology, culture and cybersecurity.

National security is therefore a convenient catch-all which will be mobilised by Beijing in Hong Kong whenever their interests are materially damaged. Hong Kong is in a new era where it cannot be held up as a leading rule of law jurisdiction. The UK Supreme Court would have done well to listen to the words of Helena Kennedy QC when she said: ‘Assurances were given when the National Security Law was imposed by China that it was not a tool for crushing opposition and that it was to go no further than national security legislation enacted in different jurisdictions worldwide. It has now become clear just how untrue this was, and that its real intention is to undermine the rule of law and the rights of Hong Kong citizens.' The Supreme Court's endorsement of the city’s rule of law is an utter embarrassment.

Johnny Patterson is Policy Director of Hong Kong Watch. This article was published in The Spectator on 27 August 2021. (Photo: The Spectator)