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Opinion | US-China Commission: Partisan report a farrago of fallacies

By Grenville Cross

In 2000, the US Congress established the United States-China Economic and Security Review Commission, with wide terms of reference. Its mandate is to monitor, investigate and submit to Congress an annual report on the national security implications of the bilateral trade and economic partnership between the two countries. If appropriate, it also is required to make recommendations to Congress for legislative and administrative action.

Although Congress has not directed the commission to base its assessments on objective analyses, it hopefully expects no less. After all, if its reports are biased or politically driven, they will be worthless for truth-seekers, let alone policymakers. This, unfortunately, has been disregarded by the commission, and its "2021 Annual Report to Congress", submitted on Nov 17, is not worth the paper it is written on.

It is divided into five chapters, each self-contained. They cover such things as the Communist Party of China's ambitions and challenges at its centennial, China's influence in Latin America and the Caribbean, the CPC's economic and technological ambitions, US-China financial connectivity and risks to US national security, China's nuclear forces and decision-making for a war over Taiwan. It is, however, Chapter 5, titled "Hong Kong's Government Embraces Authoritarianism", that is the giveaway, at least for people who know the city.

Chapter 5 is shot through with factual inaccuracies, some cringeworthy, and a systematic attempt has been made to diminish Hong Kong's legal system. With all the resources at its disposal, it beggars belief that the commission, chaired by Carolyn Bartholomew, who previously worked for the US House speaker, Nancy Pelosi, could only come up with a farrago of fallacies like this. Although it is tempting to imagine that the US consul general in Hong Kong, Michael Hanscom Smith, who rejoices in myth-peddling, must have had a hand in this, on this occasion that may be unfair.

There are, after all, multiple anti-China groups in the US, including the Hong Kong Democracy Council, as well as legions of hostile academics, and their collective efforts will likely have contaminated this report. It certainly appears the commission has bought heavily into their propaganda sheets, and this casts light on its fundamental flaws. Indeed, some of the errors are so egregious that it is hard to imagine that even Smith, always eager to please his superiors, could possibly have signed off on them.

Thus, for starters, Chapter 5 alleges that the National Security Law for Hong Kong, enacted on June 30, 2020, has enabled "the Hong Kong Government to ensure all national security cases are assigned to pro-government preferred judges, guaranteeing outcomes favorable to the government and the CCP". This, of course, is drivel, calculated to undermine the city and lead Congress up the garden path. Not once does the commission explain that every judge designated to handle a national security case is not only drawn from the ranks of the existing judiciary, but will already be of high repute.

Although under the Basic Law (Art.88), the chief executive appoints every judge, this is only done on the recommendation of an independent body, the Judicial Officers Recommendation Committee, chaired by the chief justice, and this was not disclosed to Congress. Neither was it told that the Basic Law requires judges to be "chosen on the basis of their judicial and professional qualities" (Art.92), a factor central to a proper understanding of the situation. Anybody reading the report would be unaware that, upon appointment, judges must swear a judicial oath, by which they undertake to "conscientiously, dutifully, in full accordance with the law, honestly and with full integrity, safeguard the law and advance justice without fear or favor" (Sect 17, Oaths and Declarations Ordinance, Cap 11).

This report, therefore, is deliberately misleading, a crude attempt to malign the Hong Kong Judiciary, but it gets worse. Although the then-chief justice, Geoffrey Ma Tao-li, explained, on July 2, 2020, that the only criteria for the appointment of national security judges are their judicial and professional qualities, meaning that "judges should not be designated on the basis of any political considerations", this clearly reassuring information has been withheld from Congress.

Quite clearly, before a judge can be designated, any legal objections have to be considered, including, as Ma explained, "any objections based on bias or reasonable perception of bias". This, however, does not mean that a designated judge is a government puppet, as the commission implies, but simply indicates that, when highly sensitive material concerning national security is involved, elementary precautions have to be taken. If, therefore, a judge, as the National Security Law puts it, "has made any statement or behaved in a manner endangering national security" (Art. 44), elementary prudence dictates that he or she should not handle such cases, and this should surprise nobody. After all, no country in the world, including the US, would place its secrets in the hands of a judge whose loyalties are suspect.

Once, moreover, judges are designated to handle national security cases, it is the judiciary itself, and not the chief executive, that decides which judges will handle which cases. It already does exactly this in relation to every other type of case, whether civil or criminal, so this should surprise nobody. As for the commission's claim that "pro-government preferred judges" will deliver "outcomes favorable to the government", this, slander apart, highlights an ignorance of the Basic Law, which stipulates that the judges "shall exercise judicial power independently, free from any interference".

Within Chapter 5, the commission has a subsection titled "Overseas Judges Lose Confidence in Court of Final Appeal". In seeking to substantiate this alarming claim, heavy reliance is placed on a retired academic, Jerome Cohen, who testified that the overseas judges were "mere decorations" in an abusive legal system, and should resign. Although this was an ugly slur on as fine a body of international jurists as can be imagined, the commission did not reveal that judges from around the world not only have confidence in the city's legal system, but have extended their tenures accordingly. Indeed, far from losing faith, five of the overseas judges have accepted new three-year terms of appointment in 2021, namely, Justice Murray Gleeson (Australia), Justice Beverley McLachlin (Canada), and Lords (David) Neuberger, (Robert) Walker and (Nicholas) Phillips (the United Kingdom). Quite clearly, none of them would have signed up if there was even a scintilla of truth in any of Cohen's ramblings.

On Aug 27, moreover, as the report acknowledges, the president of the UK Supreme Court, Lord (Robert) Reed, himself a non-permanent judge, announced that, having reviewed the situation, he, and his deputy, Lord (Patrick) Hodge, would continue to sit in the Court of Final Appeal. He explained that the judiciary's decisions "continue to be consistent with the rule of law", something he, with his front-row seat, is rather better placed to judge than Cohen, in his ivory tower in New York. Another British judge, the acclaimed jurist Lord (Jonathan) Sumption, pointed out that, far from quitting, the overseas judges "will serve the cause of justice better by participating in the work of Hong Kong's courts", a truth to which, sadly, Cohen is blind. Instead, however, of relying on the firsthand assessments of Reed and his brother judges, the commission has regurgitated the prejudices of the likes of Cohen, concluding that it is "no longer certain that those serving in non-permanent posts on the Court of Final Appeal can still protect the rule of law".

Having traduced the judiciary in this way, the commission then turned its sights on the National Security Law, with Chapter 5 claiming it had "destroyed the legal system that had prevailed in Hong Kong since 1997, rendering meaningless the rights enshrined in the Basic Law". Once again, this is propaganda that deliberately disregards the human rights heavy nature of the new law. At the outset, it stipulates that "human rights shall be respected and protected in safeguarding national security", and that the rights and freedoms which citizens enjoy under both the International Covenant on Civil and Political Rights and the International Covenant on Economic and Social Rights "shall be protected in accordance with the law" (Art.4). It then provides that, in national security cases, "the principle of the rule of law shall be adhered to", that "a person is presumed innocent until convicted by a judicial body", and that a defendant's fair trial guarantees "shall be protected" (Art.5). The commission, however, has not spelled this out, apparently content to leave Congress in the dark, and this obviously debases the whole.

In its eagerness, moreover, to put the boot into Hong Kong, the commission has tripped over its shoelaces. Having quoted the assessment of both Lords Reed and Hodge that "the Hong Kong Judiciary continues to operate free of government interference in accordance with the rule of law", its report concludes that the city has now turned into "a police state", a contradiction in terms in anybody's book. It appears to imagine that, having imbibed the testimony of assorted fantasists, all with axes of their own to grind, its understanding of the situation is somehow superior to that of the distinguished jurists at the apex of the city's legal system, which is arrogance run wild.

Although the fallacies highlighted all feature in Chapter 5, they are representative of the failings of the entire report. It is, quite simply, a hatchet job, designed to blacken China and galvanize its antagonists in Congress. It would, therefore, be a waste of time for anybody to wade through its 539 pages, unless, of course, they are short of propaganda tropes. It would be nice if Smith, who claims affection for Hong Kong, could drag himself away from his candles in Garden Road for long enough to put Congress straight, but this, alas, is a long shot. In Washington, DC, disinformation now dominates, and the commission has wasted another valuable opportunity to rectify the situation.

(Source: China Daily)

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of DotDotNews.

Read more articles by Grenville Cross:

Opinion | Secessionists beware: Hong Kong has your measure

Opinion | Riot prosecutions: Full steam ahead after CFA ruling

Opinion | Legal aid: Reforms promote fairness and benefit taxpayers


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