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  • Matthieu Dinh

SANCTIONS PROPOSED ON HONG KONG’S JUDICIARY, AS CHINA CONTINUES CRACKDOWN

Matthieu is a second-year Politics and International Relations student at UCL with a keen eye on political developments in France and East Asia.




A bipartisan group of US congressmen introduced a bill in late October which may lead the Biden administration to impose sanctions on members of Hong Kong’s judiciary. This follows continued bipartisan criticism of Beijing’s crackdown on Hong Kong. The congressmen state that the bill aims to “hold Hong Kong officials accountable” for “human rights violations” and to demonstrate that the United States “stand[s] with Hong Kongers”.


A former British Colony, sovereignty of Hong Kong was transferred to the People’s Republic of China in 1997. Under the 1984 Sino-British Joint Declaration, both countries agreed on the drafting of the city’s de-facto constitution, the Basic Law. Under the One Country Two Systems model enshrined in the Basic Law, Hong Kong was to retain freedoms absent in mainland China, move towards universal suffrage for the election of city’s leader and legislature, and retain a significant amount of autonomy vis-à-vis Beijing for at least 50 years. Beijing has continuously refused to uphold the agreement and has claimed that the Joint Declaration no longer has any legal effect. The United Kingdom disagrees with this and has affirmed that China is in breach of the declaration.


Beijing’s encroachment on Hong Kong’s autonomy, and refusal to honour promises made to Hong Kongers has led to several mass protests over the Special Administrative Region’s history. On July 1st 2003, an estimated 500,000 protesters took to the streets to protest against the implementation of Article 23, causing the government to backtrack. The proposed legislation is often viewed as a less draconian precursor to the 2020 National Security Law. Government officials now allege, without proof, that “foreign forces” incited the march. Protesters once again took to the streets in 2014 after Beijing refused to grant Hong Kongers genuine universal suffrage, leading to the 87-day occupation of major roads in the city, a movement now known as the Umbrella Movement.


In 2019, the introduction of the extradition bill by then-Chief Executive Carrie Lam, which would have enabled individuals in Hong Kong to be extradited to the mainland, sparked mass protests which attracted up to 2 million participants in some marches, nearly a third of the city’s population. With time, protesters’ demands expanded to include an independent inquiry into growing police brutality and the introduction of universal suffrage. Protests died down as the first wave of the COVID-19 pandemic hit the city, during which Beijing took the opportunity to unilaterally impose the National Security Law, sidelining even the pro-Beijing administration in the territory. The draconian law largely criminalises any dissent by banning “subversion, secession, collusion with foreign forces” whilst also expanding the definition of “terrorism” to include potentially non-violent actions such as disrupting transport or other infrastructure. In the wake of this, numerous countries suspended extradition treaties with the city, with some also creating or expanding pathways to allow Hong Kongers to emigrate.


The Hong Kong Sanctions Act introduced to the US Congress by representatives Young Kim of California, Jim McGovern of Massachusetts, and John Curtis of Utah, builds on past legislative acts and executive orders to hold Beijing accountable for their crackdown on Hong Kong. In 2020, both houses of Congress unanimously passed the Hong Kong Autonomy Act. This paved the way for sanctions to be imposed on individuals and entities in Hong Kong and mainland China which were deemed to have aided in the encroachment of Hong Kong’s autonomy. A complementary executive order signed by then President Donald Trump also ruled that Hong Kong had ceased to be autonomous, leading to the removal of Hong Kong’s preferential status vis-à-vis the mainland, previously a major benefit to the city in its relations to the United States. Similarly, the 2019 Hong Kong Human Rights and Democracy Act requires the US to sanction individuals who are considered responsible for human rights abuses in Hong Kong.


The proposed Hong Kong Sanctions Act names 49 individuals which include judges, prosecutors in addition to government officials. Judges designated by Hong Kong’s Chief Executive who rule over National Security Law cases are among those named. Notwithstanding the doubts over judicial independence, given the fact that these judges in question are handpicked by the government, the fairness of judicial proceedings along with the independence of Hong Kong’s judiciary has come into question more generally. Judges seem to wish to curry favour with Beijing to secure promotions. For instance Judge Kwok Wai-kin gave a remarkably short sentence in 2020 to a man who stabbed three people who were contributing to a local Lennon Wall, and called his actions an “involuntary sacrifice”, in essence, excusing the use of violence because of the man’s political stance. He also expressed regret that he legally could not give an even shorter sentence. After an initial suspension, Kwok was reinstated, and handpicked as one of the national security judges. He is on the proposed sanctions list. In contrast, this October two students were jailed after mourning the death of a man who stabbed a police officer – the judge deeming they had “glorified violence”. Criticism has been made over the conduct of trials in which the prosecution seemingly flouts the Prosecution Code and violates defendants' rights, all with the tacit approval of the nominally independent judiciary. In addition, Beijing has granted additional powers to national security officials to overrule judicial decisions and to the Chief Executive to bar lawyers from representing clients in national security cases at a whim.


Beijing and Hong Kong have, naturally, expressed their anger at the proposed legislation, slamming interference in what it deems to be China’s “internal affairs”. Pro-Beijing figures in Hong Kong are also demonstrating their anger, stating that national security trials may be “forced” to be transferred under mainland China’s jurisdiction as a result. Article 55 of the National Security law allows for cases to be transferred to the jurisdiction of mainland China if the case is “complex” due to the “involvement of a foreign country or external elements”. In a rare climbdown, Hong Kong government officials seem to have poured cold water on the idea, hinting that even the government is aware that transferring court cases to mainland China would further damage Hong Kong’s reputation, as the city tries to relaunch itself amidst the ongoing crackdown and legacy of strict COVID-19 regulations. Like many things in post-2020 Hong Kong though, Beijing, and not the Hong Kong government, has the final say on this.


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