In 1990, in Havana, Cuba, the eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted the “Guidelines on the Role of Prosecutors” (the Guidelines). The Guidelines, also known as “the Havana Declaration”, require prosecutors to perform their duties “fairly, consistently and expeditiously, and respect human dignity and uphold human rights”. The Guidelines are also incorporated into the Department of Justice’s “Prosecution Code”, and influence its prosecutors.
The Guidelines, moreover, indicate that states must protect prosecutors, and promote their interests. In particular, states are required to ensure that “Prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability”. China, by constitutional means, has already provided safeguards for prosecutors in Hong Kong.
The Basic Law (Article 63) stipulates that the Department of Justice “shall control criminal prosecutions, free from any interference”. Since 1997, therefore, operating from this secure base, prosecutors have been empowered to take the decisions they believe to be right, regardless of criticism or pressure from any quarter. By applying the basic prosecutorial criteria used throughout the common law world, and only pursuing cases where there is a reasonable prospect of conviction, our prosecutors have done much to achieve justice.
Nobody, of course, is above the law, even if they are rich and famous, or have connections elsewhere. Anybody who is suspected of breaking the law must, therefore, other things being equal, expect to be prosecuted. It ill-behooves their contacts elsewhere to seek special treatment for them, let alone to try to pressurize our prosecutors into not doing their duty. It is fortunate, therefore, that the secretary for justice, Teresa Cheng Yeuk-wah, has vigorously upheld the principle of prosecutorial independence, and rejected improper pressures from foreign parts.
What, however, they (foreign critics) must clearly understand, is that actions have consequences, and that, if people are suspected of having committed crimes, prosecution is a real possibility
After 15 individuals, on April 18, were charged with organizing, publicizing or taking part in unauthorized assemblies in 2019, the US secretary of state, Mike Pompeo, bizarrely claimed, without a scintilla of evidence, that the prosecutions, which he attributed to “Beijing and its representatives in Hong Kong”, were “inconsistent with commitments made under the Sino-British Joint Declaration”. Quite clearly, Pompeo, who has red-carpeted some of the arrestees in Washington, either knows nothing about how Hong Kong’s legal system works, or chooses to ignore it. Cheng has quite rightly stood up to him, as bullies must always be confronted, not appeased, and Pompeo’s form is notorious. On March 17, for example, he sparked outrage when he threatened the prosecutor of the International Criminal Court, Fatou Bensouda, with “steps” against her staff, and their families, if she did not call off an ICC investigation into alleged misconduct by US personnel in Afghanistan. His instincts, quite clearly, are those of the street rough, not the global diplomat, which is a pity at a time when the world is crying out for real statesmanship.
No less sinister, moreover, was the attempt, initiated by Slovakia’s Miriam Lexmann, of 30 members of the Foreign Affairs Committee of the European Union’s Parliament to subvert Hong Kong’s legal processes. Even though the 15 cases are pending before the courts, Lexmann’s group wrote to the chief executive, Carrie Lam Cheng Yuet-ngor, calling on her to “ensure that the charges are dropped”. Even if she wanted to, Lam, of course, could not have complied. Quite apart from having no control over public prosecutions, Lam cannot dictate to the judiciary, which, under the Basic Law, “exercises judicial power independently” (Art 85). The letter, quite clearly, was a brazen attempt to interfere with the course of public justice, a serious offence not only here but also in the EU. The police will hopefully have taken note, and if Lexmann, who was last here in November, supporting “Stand with Hong Kong”, seeks to enter Hong Kong again, she will have much to explain.
Over in the United Kingdom, meanwhile, Hong Kong Watch (HKW) eagerly joined in. Its chairman, the serial fantasist Benedict Rogers, who recently accused Lam of having “blood on her hands”, solemnly announced it was “essential that Hong Kong’s Chief Executive take note of this very clear message from the European Parliament and drop the charges”. HKW duly mobilized one of its patrons, Malcolm Rifkind, a retired minister, who claimed, apparently with a straight face, that the prosecutions were an attack “on the international rules-based order itself”, as they marked a betrayal of the promises made in the Basic Law and the Sino-British Joint Declaration. This, of course, was nonsense writ large, displaying woeful ignorance of both instruments, as also was the hyperbolic claim by the former governor, Chris Patten, that the arrests were “another step towards burying the governing principle of ‘one country, two systems’”.
Particularly regrettable, however, was the UK Foreign Office’s reaction. Although everyone can appreciate how sick it must be of having the likes of Patten, Rifkind and Rogers constantly knocking on its door, it was ill-judged, even as a sop to them, to call on the Hong Kong authorities to “avoid all actions that inflame tensions”. By this, it presumably meant that criminal suspects should not be prosecuted if, despite the evidence, they are prominent in society, a notion that runs contrary to the rule of law in both places. Instead, therefore, of trying to appease the anti-China brigade, who only see what they want to see, the Foreign Office would be well advised to listen to its consul general in Hong Kong, Andrew Heyn, who has put them straight more than once, and could have told them that everybody is equal before the law here in Hong Kong. Since another of its concerns involved “the right of peaceful protest”, Heyn could also have explained that, under the Basic Law (Art 39), the International Covenant on Civil and Political Rights, which protects the right of peaceful protest, applies in Hong Kong, and that the only restrictions allowed are those necessary to ensure good order and public safety, with large numbers of processions being approved every year.
What unites the foreign critics, apart from their hostility toward China, is their willful disregard of criminal justice in Hong Kong. What, however, they must clearly understand, is that actions have consequences, and that, if people are suspected of having committed crimes, prosecution is a real possibility. Once, moreover, the suspects are charged, they will have a fair trial, and attempts by outsiders to interfere with the judicial process, which would not be tolerated in their own countries, will never succeed in undermining the rule of law.
Even if foreign politicians cannot grasp these basic truths, the secretary for justice has nonetheless taken a firm stand. On April 26, she made it clear that if people elsewhere think they can, by intimidatory tactics, affect the due operation of our legal system, they are sorely mistaken. She stressed that her prosecutors act independently, that evidence is carefully evaluated, and that she will resist outsiders who make requests for “political reasons”. Any attempts, moreover, to interfere with her department’s work were “futile”, which will be music to the ears of everyone who values the rule of law.
Instead, therefore, of recklessly maligning Hong Kong’s legal system, one of Asia’s finest, these outsiders should be urging everyone to observe the law, complimenting Cheng for protecting prosecutorial standards, and discouraging conduct which, in violation of the Havana Declaration, intimidates, harasses or interferes with independent prosecutors.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of Hong Kong.
The views do not necessarily reflect those of China Daily.
