Hong Kong’s legal system bears the scars of the National Security Law

Lawyer Michael Fisher wrote one of the major university textbooks of Hong Kong’s legal system in 2019, but it is outdated.

Last year, China implemented a national security law on the territory under which one of his students who had taught at the University of Hong Kong for many years has been arrested.

“I just released it [the book] Two years ago, it now needs to be completely rewritten,” Fisher said.

The promulgation of the National Security Law heralds Destructive change After the anti-government protests in 2019, Hong Kong’s politics and civil society aimed to suppress dissent and bring Hong Kong and the mainland closer together.

Many business people in Hong Kong still believe that these changes will be immune to the influence of the Hong Kong courts, which are based on the British common law legal system and are regarded as an integral part of Hong Kong’s role as an international financial center.

But one year later, analysts said that the law is rapidly undermining the city’s legal norms, such as the presumption of innocence and the right to bail in cases involving security laws. Judges have also been shown to have little influence on these cases.

This law broke through the rubber stamp parliament in Beijing and imposed it on Hong Kong, breaking the firewall that separates Hong Kong’s legal system from mainland China, and allowing suspects to cross the border for trial for the first time. Its vaguely defined crimes, including subversion and collusion with foreign forces, are punishable by up to life imprisonment. Critics say it threatens the freedoms guaranteed by Hong Kong when it was handed over from Britain to China in 1997. Those charged under the law fear that they may not get a fair trial.

“The minimum rate for a lawyer for a day is 75,000 Hong Kong dollars (9,655 US dollars),” the spouse of a politician who was refused bail under the law told the Financial Times, explaining why the couple had not decided on the date of hiring a lawyer despite the upcoming court hearing. . “[But] In any case, this will not have any impact, because the case is entirely political. “

According to the Hong Kong Security Bureau, a total of 117 people were arrested in accordance with the law, including a 15-year-old boy, and 64 people have been prosecuted. Many of them were refused bail.

Another breakthrough from the city’s common law tradition is that a judge recently ruled in a security law case that there is no constitutional right to trial by jury.

The security law case has not yet been closed, but legal experts said that the preliminary ruling showed that the judiciary only has so much power to mediate its impact.

“The National Security Law clearly stipulates that it has an overriding status,” said Ling Bing, a Chinese legal expert at the University of Sydney.

Chinese state media and officials, once unheard of, are also increasingly commenting on Hong Kong legal cases.

In December last year, when a judge briefly released the democratic media tycoon Li Zhiying on bail, the Chinese state media threatened the Hong Kong judiciary that if the case could not be handled “properly”, the mainland court would take over. After the appeal, Lai’s bail was revoked. Since then, he was sentenced to jail in Hong Kong on various charges.

Analysts said that excessive police enforcement has also put pressure on the legal system. Last week, a 37-year-old man was arrested on suspicion of posting stickers supporting protests outside his home.

“Many acts that were not considered criminal before, especially certain forms of political expression, are now illegal,” said Ryan Mitchell, a legal scholar at the Chinese University of Hong Kong.

In September last year, concerns about the independence of the legal system intensified, when the city’s leader Carrie Lam and a senior judge retorted that there was no separation of powers between the executive, legislative and judicial.

Han Zhu, a research professor at the University of Hong Kong, said that for Beijing, the protests in 2019 defended Beijing’s legal system reforms, indicating that the city’s “overall legal order” has been “seriously damaged”.

China believes that Hong Kong’s legal system needs to put the national constitution first, not Hong Kong’s mini-constitution, which is the basic law that protects rights such as freedom of speech. “This [security law] It is definitely not the end, but the beginning of the legal and political reconstruction process,” Zhu wrote.

According to reports, Zhou Qiang, President of the Supreme People’s Court of China, told the Hong Kong judiciary to “fully implement” the policies of the Chinese government to ensure that every senior in Hong Kong is a patriot. The British Financial Times last month disclosed how pro-Beijing politicians interfered with the appointment of senior Hong Kong judges-a process that used to be basically without political interference. This opens up a potential way for Beijing to more directly influence the choice of new judges.

For a long time, the independent tradition of Hong Kong’s judiciary has attracted multinational companies that wish to establish Asia-Pacific headquarters in Hong Kong, but the real trial may have just begun.

“Judicial independence is the main difference between Hong Kong and the Mainland… and the Hong Kong feature that Beijing despises most,” said lawyer Fisher.

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