Now that the Hong Kong Legislative Council has been subdued, Beijing has explicitly begun to intensify pressures that have been gradually building to further curb the special administrative region’s independent courts. The new National Security Law (NSL), of course, already provides for cherry picking among judges who may deal with NSL prosecutions in Hong Kong. But that has not been enough for the Chinese Communist Party. At this early point since promulgation of the NSL on June 30, most Hong Kong criminal trials involving anti-Beijing protests are prosecutions that do not fall under the NSL but under pre-existing Hong Kong law, and the Party has not been happy with some of the results.
While a few judges have surprised civil libertarians by convicting the accused despite less than convincing evidence, some judges have had the audacity to grant bail to protesters accused of serious crimes. Others have acquitted defendants on the ground that the prosecution failed to prove its case beyond a reasonable doubt as required by law. Yet others have imposed sentences that pro-government supporters deem too lenient.
In addition, in some constitutional cases, Hong Kong courts have sought to exercise their traditional power of judicial review of challenged legislative and administrative actions. Although the National People’s Congress Standing Committee is in the process of issuing decisions that will eliminate or at least circumscribe local judicial review, as in the recent case leading to the ouster of four democratic legislators from LegCo, Beijing obviously fears that independent judges may nevertheless retain some capacity for creating new difficulties for the government.
This background sets the stage for the recent “Legal Summit” convened by the Hong Kong Department of Justice to celebrate the 30th anniversary of China’s Basic Law, enacted in 1990 to govern the former British colony following its 1997 “handover” to the People’s Republic of China (PRC). Zhang Xiaoming, deputy director of the central government’s Hong Kong and Macau Affairs Office, made a bold and widely publicized speech at the speech. Zhang proclaimed the need for further “judicial reform” to make certain that “anti-China,” unpatriotic judges who fail to grasp the essence of the Basic Law are either fired from the judiciary or brought to heel in their work. Zhang did not specifically indicate how this “judicial reform” should be carried out, but did note that “legal experts” have discussed various possibilities.
So far, several measures appear likely to be attempted, in addition to an effort to kick out or neuter offending judges. Among the steps that are being urged is the introduction of political tests for recruitment of new judges. Under this logic, positions should only be open to law graduates and lawyers who demonstrate sufficient “love of Hong Kong and China” and who do not seem to be corrupted by the “alien values” and practices of a common law legal education that is deemed to be inconsistent with “comprehensive understanding of the Basic Law and the PRC Constitution.”
Yet “improved” recruitment will be a slow process, and it will take years before its significant impact on prosecuted cases can be felt. More immediately effective may be “thought reform” instruction for all existing judges, from the Magistrates’ Courts that are proving “troublesome” in criminal trials to the prestigious Court of Final Appeal that so many Hong Kongers have been led to believe is the unshakeable bastion for protecting their rights under the One Country, Two Systems “high degree of autonomy” that was promised them in the 1984 Sino-British Joint Declaration.
Such a program of continuing legal education would enable local judges to finally master not only the complexities of reconciling Hong Kong’s inherited English legal system with the motherland’s “socialist rule of law with Chinese characteristics,” but also the implications of the latest version of the rapidly evolving “Xi Jinping Thought on the Rule of Law.” As one local deputy to the National People’s Congress, a solicitor who believes that “the city’s judiciary is in dire need of reform,” put it, “systematic, professional on-the-job training related to the nation’s Constitution, the constitutional order, as well as the Basic Law” will “ensure that the city’s judiciary has not ‘gone off the rails.’”
Other proposals also abound. One prominent suggestion calls for establishing “sentencing committees” to revise standards in the hope of assuring harsher case by case punishments and reducing the phenomenon, common to most legal systems, that some judges impose lighter sentences than others do in similar circumstances. Since, when attempted in other jurisdictions, the articulation of sentencing standards has often yielded results disappointing to their proponents, soon we may even expect proposals for the establishment of committees to review and “correct” sentences in individual cases where appellate courts decline to interfere with the discretion usually allowed trial judges.
One of the most astounding proposals, emanating not from some zealous politicians or retired officials seeking to please Beijing but from the government itself, has sought to exclude, even from protest cases not brought under the NSL, judges who do not enjoy the trust of today’s politically-controlled prosecutors and the authorities. Such a brazen effort, totally unsupported by local or national legislation, will likely be rejected by the courts, despite Beijing’s growing mobilization of pressure.
Only one of the currently proposed “reforms“ seems worthy of popular support. There is indeed a need to make judicial decisions more readily accessible to the Hong Kong public. Court judgments should be made more understandable to the educated lay public, and they should be fully published in Chinese as well as English. Yet this desirable improvement should not become a screen for allowing more sinister changes to be made under its attractive skirt, and this improvement alone would surely not satisfy Zhang Xiaoming, who openly calls for patriotism to come before democracy and freedom when contemplating judicial reform.
Zhang and his colleagues have tried to minimize the anxieties that this new campaign to tame the Hong Kong courts has aroused. After all, they allege, every country needs judicial reform, and many democratic countries engage in it. This is no big deal, they say. But China’s experience is obviously much more relevant to Hong Kong’s present plight than that of the liberal governments that have condemned Beijing’s recent actions.
It is therefore useful to cast an eye on “judicial reform” as it has been carried out in China. We should recall the PRC’s first “judicial reform” campaign, which purged the courts of pre-1949 holdover judges in the early 1950s. We should not forget the horrific 1957-58 “anti-rightist” campaign that decimated the ranks of their successors, who had recently been trained under short-lived Soviet influence. Above all, we should take account of the present era in the mainland, where Xi Jinping has just launched yet another “rectification” campaign to assure the loyalty to the Party of all legal officials, even while simultaneously publicizing his ostensible goal of establishing a “rule of law” system where fairness and justice will prevail for everyone.
China’s experience is what Zhang Xiaoming has in mind when he calls for “judicial reform.”
Jerome A. Cohen is founding director emeritus of New York University Law School’s U.S.-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations.