Opinion | Hong Kong's judicial independence: UK Bar report poisoned by hostile influencers
By Grenville Cross
Although not widely known beyond legal circles, the London-based Bar Human Rights Committee (BHRC) bills itself as "the independent international human rights arm of the Bar of England and Wales". Having been around since the 1990s, it says it works "to protect the rights of advocates, judges and human rights defenders around the world," and this sounds laudable.
On Jan 31, 2023, the BHRC issued a "special report" on judicial independence in Hong Kong. According to the foreword of its chairman, Stephen Cragg KC, from London's Doughty Street Chambers (the significance of which will shortly become apparent), the report "applies the Judicial Independence Monitor, an innovative and valuable toolkit developed by the American Bar Association Rule of Law Initiative". This "toolkit" is, apparently, designed to "assess vulnerabilities and strengths of judicial independence in different jurisdictions", and, to that end, it examines internal independence, external independence and transparency.
Although this sounds fair enough, Cragg kicks off his foreword by declaring that "the imposition of the National Security Law on Hong Kong by Beijing has fundamentally changed the constitutional landscape with profound implications for the legal system"; and, at this point, the alarm bells start ringing.
He then, somewhat bizarrely, quotes from America's Freedom House (described by Nury Vittachi as "a tool financed largely by the US Government"), which, in one of its periodic anti-China broadsides, waxed lyrical about "millions of people in Hong Kong protesting democratic deterioration and rights violations, amid increasing police brutality and other violence against them".
On the back of this US disinformation, Cragg then revealed that the BHRC's report "finds members of the judiciary and the legal institutions in Hong Kong face extraordinary pressures in this area". This, of course, will come as news to the judges themselves and the practitioners, as well as to the compilers of the World Justice Project's Rule of Law Index 2022, who adjudged Hong Kong as 22nd out of the 140 jurisdictions surveyed in terms of adherence to the rule of law.
However unfortunate, Cragg's comments cannot be said to be out of character. In 2022, for example, as co-editor of "The Edge of Law" (yet another collaboration between the BHRC and the American Bar Association Rule of Law Initiative), he decried "the swift and severe clampdown on political and democratic freedoms in Hong Kong".
Although, therefore, in the face of Cragg's claptrap, objective reviewers might be tempted to discontinue reading, humbug must always be exposed, even if perseverance confirms the worst fears.
Thus, for example, whereas the report asserts that the National Security Law for Hong Kong (NSL) "erodes the system established by the Basic Law by establishing entirely separate procedures for national security cases", it ignores how the International Covenant on Civil and Political Rights, which contains the fair trial guarantees (and is enshrined in the Basic Law's Art.39), is prioritized by the NSL (Article 4).
At trial, moreover, any suspect enjoys the full panoply of rights available to defendants throughout the common law world, including the right of defense, the right to a fair hearing, and the right to be acquitted if the prosecution has not proved its case beyond a reasonable doubt. This, however, is overlooked by the report.
As regards the judiciary's external independence, the report claims that "threats from pro-establishment newspapers and even state authorities on court rulings suggest that the influence of the CPG continues to loom large over the courts in Hong Kong", and this "creates a huge pressure point on the Hong Kong judiciary". If scaremongering like this were not so sinister, it would be risible, and, as the former chief justice, Andrew Li Kwok-nang, explained on June 15, 2022, when reviewing Hong Kong's 25 years as a special administrative region, "I can state that during this period, there has been no instance of interference with how a judge should adjudicate'.
Venom apart, the report is also infected with muddled thinking. It declares, for example, that "NSL and sedition cases are not heard in public, and, until the summer of 2022, were subject to strict media bans negatively impacting public perception of the courts and the rule of law", claims that anybody familiar with the city's legal system would not recognize. Indeed, on Feb 6, 2023, the European Union's Deputy Head of Office in Hong Kong, Laurence Vandewalle, while monitoring the subversion trial of 47 defendants, declared that "we appreciate that the judiciary system is open and we can observe, so we are here to observe."
In fact, every trial involving national security and sedition has not only been held in public but also widely reported. Although it is true that, until 2022, following an appellate ruling, there was no reporting of pre-trial committal proceedings for any crime to be tried in the Court of First Instance, this was not, as implied, for any sinister reason, but solely in order to avoid pre-trial publicity that might prejudice the fairness of the defendant's future trial.
As if blunders like this are not bad enough, the report also parades a series of half-truths. Although the resignation of two British judges from the Hong Kong Court of Final Appeal in 2022 is dramatized, the decision of the six other British nonpermanent judges to hold their ground is ignored. Again, while complaint is made over there having been no female permanent judges in the CFA, the appointments to it of two female nonpermanent judges (Canada's Beverley McLachlin and the UK's Brenda Hale) are disregarded.
On the basis of an analysis that, by any yardstick, is prejudiced and inaccurate, the report concludes with various recommendations that owe nothing to reality. Although, for example, the NSL was enacted to save the "one country, two systems" principle from those who sought to wreck it in 2019-20, it paradoxically calls upon the authorities to "fully respect the framework of 'one country, two systems' as laid down in the Basic Law".
The report strays further into fantasy land with a proposal (worthy of Hong Kong Watch) that the authorities show commitment to the "separation of powers doctrine", as this will be a "first step in re-establishing public confidence in the judiciary". There is, of course, absolutely no need to "re-establish" people's confidence in the judiciary, which they have always trusted to deliver justice, whether before or after 1997, and this gratuitous slur belongs in the gutter.
The report, appropriately enough, finishes with the sort of grandstanding now typical of Western diatribes. It demands the reform of the parts of the NSL it dislikes, including the article requiring the designation of judges to handle national security cases (which "should immediately cease to operate"), and the article restricting judicial review applications in some situations (which "should be immediately repealed").
As regards Beijing's earlier interpretation of the Basic Law's Article 104 (which facilitates the removal of judges and other public officials who are found to have violated their oath of office), the report says that the "Central People's Government should take immediate concrete steps to remove the interpretation", which, if nothing else, should amuse Beijing.
The report, somewhat confusingly, also calls upon the Standing Committee of the National People's Congress to exercise its interpretative powers over the NSL with "great restraint" (as it always does) and to provide "legal reasons" for any interpretations (the Legislation Law already applies).
The publication of this report, therefore, begs the question of how the BHRC could have produced something so shoddy, and the answer is fascinating. All roads lead directly to Cragg's Doughty Street Chambers, some of whose leading members have been dabbling in (and promoting) anti-China sentiment for years, and gunning for Hong Kong since at least 2019.
Apart from Cragg himself, one of the BHRC's two vice-chairmen, Aswini Weereratne KC, is also a member of Doughty Street Chambers. Out of its ten executive members, two, Zimran Samuel and Louise Price, are likewise members. And, of the seven members of its advisory board, no less than four come from these chambers, namely, Kirsty Brimelow KC, Mark Muller KC, Peter Carter KC, and Baroness (Helena) Kennedy KC (the biggest giveaway of all).
The significance of the BHRC having been infiltrated at all levels by Doughty Street Chambers cannot be overestimated. Since it was founded in 1990, this set of chambers has, apart from its conventional legal practice, become a hotbed of anti-China activity, as Helena Kennedy exemplifies par excellence.
In 2021, for example, she served as "external advisor" to the so-called "Uyghur Tribunal", the now notorious kangaroo court chaired by Sir Geoffrey Nice KC. Although the tribunal claimed to be independent, researchers discovered not only that Nice is a patron of Hong Kong Watch, the anti-China propaganda outfit operated by the serial fantasist, Benedict Rogers, but also that Kennedy is a co-chair of the Inter-Parliamentary Alliance on China (IPAC), which spreads Sinophobia in various parliaments around the world (and was itself created by Hong Kong Watch).
In 2021, therefore, Kennedy (along with Nice) was sanctioned by China for having maliciously spread what it described as "lies and disinformation" about the country.
In a delicious twist, it was announced, on Feb 1, 2023 (the day after the BHRC report was published), that Kennedy had been appointed a patron of Hong Kong Watch, with Benedict Rogers saying he was "absolutely thrilled and delighted". What, however, he did not disclose was whether the appointment was a reward for Kennedy having manipulated a report that he, and his associates, must have welcomed like manna from heaven.
There is, however, far more to Doughty Street Chambers than Helena Kennedy. It is also home to the four barristers, led by Caoilfhionn Gallagher KC, who comprise Jimmy Lai Chee-ying's so-called "international legal team". Having been described as "a gaggle of noisy prima donnas", the team (from which Lai's Hong Kong lawyers have distanced themselves) has sought to drum up political pressure globally with a view to undermining the ongoing criminal proceedings Lai faces in Hong Kong.
Although Gallagher is clearly on a hiding to nothing, given the resilience of Hong Kong's rule of law, her activities have demonstrated once again the lengths to which anti-China forces are prepared to go to subvert the city's criminal justice system. While the extent of the collusion, if any, between Gallagher and Kennedy on this issue is unclear, what is known is that, on Oct 26, 2022, after Lai had been convicted of two fraud offenses in the district court, Kennedy hosted an event for her at the House of Lords (the upper house of Britain's Parliament), at which she (Gallagher) alleged (in the presence of some of the UK's most fanatical ideologues, including Kennedy's IPAC co-chair, Sir Iain Duncan Smith), that Lai had been convicted of "trumped-up charges".
On July 8, 2022, moreover, when Gallaher's activities faced scrutiny, Kennedy rushed to her support, declaring that "Jimmy Lai's right to instruct international lawyers of his choice to represent him is fundamental to a fair trial". Although this sounded plausible, it has now been exposed as incorrect by Lai's own lawyers in Hong Kong.
On Jan 13, 2023, Robertsons, his solicitors, explained that "Mr Lai has never instructed anyone apart from his legal team in Hong Kong to act on his behalf in relation to his criminal and related proceedings in Hong Kong", and that "none of his legal advisors in Hong Kong is in any way professionally associated with this 'international legal team' in relation to Mr Lai's legal proceedings". This could not be clearer, and it demonstrates that, contrary to Kennedy's assertion, Lai and his solicitors are not party to Gallagher's shenanigans in London. As Gallagher has failed to clarify the position, suspicions are growing that either Hong Kong Watch or one of its affiliates is calling the tune, which is entirely possible.
Apart, moreover, from the likes of Kennedy and Gallagher, Doughty Street Chambers is also the base of none other than Paul Harris SC, whose short-lived chairmanship of the Hong Kong Bar Association in 2021-22 is recalled with revulsion in the city. His fatuous criticisms of the NSL and the police force were not only ill-judged but contemptuous of legal norms, and his departure was widely welcomed. Indeed, he fled Hong Kong within hours of having been interviewed by officers from the police force's national security division, and he has now found safe haven in Doughty Street Chambers, where he will presumably have provided his input to those of his colleagues involved in formulating the BHRC's report.
It is often said that justice must not only be done but be seen to be done, and the effective takeover of the BHRC by Doughty Street Chambers has fatally compromised its report. Although there are over 200 sets of barristers' chambers in London, this particular set is disproportionately represented in the BHRC's hierarchy, holding no less than eight of its twenty positions, including the top two.
It appears, therefore, that, at some point, a decision was taken in Doughty Street Chambers not only to infiltrate the BHRC, but also to manipulate it in order to embarrass China. Indeed, it is hard to see what other explanation there could be for a report about judicial independence in Hong Kong that falls woefully short of the standards customarily associated with the Bar of England and Wales. However much, therefore, the report may delight Hong Kong Watch and its fellow propagandists, it is of no value for anybody in Hong Kong who genuinely cares for the city and wishes to see its legal system strengthened.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.
The article was first published in China Daily.