National security vs rule of law in HK |Glacier Kwong

2021.06.10

Recently, a female clerk and a secondary school boy were arrested on suspicion of conspiracy to print, publish, distribute, display or reproduce seditious publications and remanded in custody until trial on June 8 at the West Kowloon Magistrates’ Court. The case was assigned to Justice So Wai-tak, one of the judges designated to take care of cases concerning the National Security Law (NSL), and was adjourned until August 4 pending further police investigation. Both defendants were denied bail and remanded in custody pending trial.

Even though they are prosecuted for alleged breach of section 10(1)(c) of Cap 200 of the Crimes Ordinance, which does not refer to the NSL, So was of the view that even if the charge in this case is not about a breach of Hong Kong’s National Security Law, the principle of Article 42 of the Law applies to offences related to endangering national security.

Article 42 of the NSL stipulates that when dealing with an application for bail for an offence against national security, the judge must first decide whether there are “substantial grounds for believing that the suspect or accused will not continue to commit an act against national security”. The threshold is now extremely difficult to meet after the Court of Final Appeal (CFA) handed down its ruling on Jimmy Lai’s case, which has been heavily criticized by legal scholars as Article 42 of the NSL basically overrides the presumption of innocent that is fundamental in common law system.

It has been almost one year since the NSL was adopted in Hong Kong. It has become clear that the civil society has shrunk like never before, and the court has now become part of the oppression. Instead of being neutral and independent, the court merely acts as the authority, working in concert on the script written by Beijing to crack down on the democratic movement.

But this might now be apparent to the international community. Last week on a panel, a China-Hong Kong legal expert said as there has yet to be convictions or life-long imprisonments under the NSL, the impact of the law on the society remains unclear, which implies that a wait-and-see attitude can be adopted by foreign governments with regards to Hong Kong. He furthered his point by arguing the NSL is adopted within Hong Kong’s jurisdiction, and it is up to Hong Kong’s court to decide what judgements to be made.

As a HongKonger, I feel angry and frustrated at this comment, but it true that a lot of foreign scholars and experts hold the view that the court in Hong Kong is still reliable. Equality before the law is nothing but a myth now in Hong Kong. But the government has been making every endeavor to maintain this façade and is quite successful.

Since Lady Brenda Hale, a non-permanent overseas judge of the CFA, indicated that she would not be reappointed at the end of her term of office, becoming the second judge to leave the bench after the NSL came into force, a lot have been anxious to see if the world would interpret that as the rule of law crumbling in Hong Kong. But later, the Judiciary Administrator, Esther Leung, said that arrangements had been made for five overseas non-permanent judges to come to Hong Kong for trials within this year and early next year, to address concerns that no overseas judges could be brought in.

Other countries in the common law system still being willing to send judges to Hong Kong is an indicator that the world has yet to notice rule of law is no longer a core value of Hong Kong’s.

(Glacier Kwong, born and raised in Hong Kong, became a digital rights and political activist at the age of 15. She is currently pursuing her PhD in Law and working on the course for Hong Kong in Germany. Her work has been published on Washington Post, TIME, etc.)

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