Hong Kong's national security law raises concerns about basic rights

World

Published: 2021-06-29 15:18

Last Updated: 2024-03-28 05:46


Source: RFI
Source: RFI

China's national security law in Hong Kong has shaken the city's legal foundations within a year of its implementation, lawyers say, and has fueled sweeping new judicial decisions and powers to pursue concerns about rights and the rule of law.

In contrast to the Communist Party-controlled courts in mainland China, Hong Kong has a globally respected judicial system and is the mainstay of the global financial center for which it is famous.

Bypassing Hong Kong's Legislative Council, the National Security Law was drawn up in Beijing and its text remained secret until its implementation June 30 last year, at a time when the authorities tightened restrictions after massive pro-democracy demonstrations in 2019, sometimes punctuated by violence.

In the year since the law was introduced, judges in Hong Kong declared that jury trials are not a constitutional right, and presumption of bail is not guaranteed in national security cases.

"It's as if aliens are invading our land, or an unstoppable sandstorm is sweeping in from the north," a defense lawyer told AFP.

He is one of four defense attorneys involved in national security cases who spoke to AFP on the condition of anonymity.

They said Hong Kong courts are now only "dribbling" on issues of rights when national security rules conflict with long-standing protections for the city's legal system.

The authorities have so far arrested 114 people under the National Security Law, and indicted 64 of them.

And last week was a watershed when the trial of the first person charged under the security law began, in the absence of a jury and in the presence of three specially chosen judges.

Trials by jury have underpinned Hong Kong's judicial system for 176 years.

Constitutional law experts have warned of threats to the city's judicial system, as courts try to avoid angering Chinese authorities, who have the final say on national security issues.

And "when (the court) relinquishes a fundamental right without any rigorous scrutiny, it also provides an intellectual justification for a hard-line regime," University of Hong Kong public law professor Johannes Chan wrote in an article in May.

"If the judiciary is not active and vigilant in protecting basic human rights, there will be no rule of law," he said.

The Hong Kong judiciary refused to "comment on legal or other substantive issues relating to individual cases," citing the principle of judicial independence.

- "Mission Impossible" -

Hong Kong and Chinese authorities say the national security law has managed to restore stability after the 2019 protests, but critics say it has caused a rift in legal protections between Hong Kong and China.

The law radically changed the political and legal landscape in a city where China promised to preserve basic freedoms after receiving it from Britain in 1997.

China now has legal jurisdiction over some cases and the law has allowed its security personnel to operate openly in Hong Kong for the first time.

The law abolished the presumption of release on bail for non-violent crimes. The defendants had to prove to the judges that they would not pose any threat to national security.

One of the lawyers told AFP that defending the accused was an "impossible task."

"It's an assumption of guilt," he added.

In an exceptional case, 47 pro-democracy activists charged under the National Security Act appeared before a marathon four-day bail hearing in March. One fainted from exhaustion and several were taken to hospital.

"Our judicial independence and the rule of law are now like a cracked pane of glass," said the first defense attorney.

"The fissure will grow larger and eventually break the glass," he added.

There are concerns that the new environment will affect judicial appointments.

Last week, the Financial Times reported, citing two sources familiar with the matter, that pro-Beijing lawmakers in Hong Kong had intervened to prevent the appointment of a judge to the city's Supreme Court.

- Giant Spectrum -

Under the security law, authorities have more weapons they have yet to use, including handing over wanted persons to the judiciary in mainland China, which is controlled by the Communist Party, where trials take place behind closed doors and the attendance of citizens and journalists is prohibited.

Prominent British judge Barbanda Hill announced earlier this month that she would leave Hong Kong's top court when her term expires, stressing that there are "various question marks" about the new national security law, a newspaper reported.

Some say that given the powers the Chinese authorities now have over those cases, Hong Kong's courts have little room for maneuver.

The approach taken by the courts so far is a "wise strategic decision" to preserve the independence of the judiciary, said Simon Young, a law professor at the University of Hong Kong, as it avoids the possibility of challenges that could lead to Beijing removing more of the city's powers.