The National Security Law gives authorities in Hong Kong more power to carry out political crackdowns

More than a year after the National Security Law (NSL) came into effect, dozens of people in Hong Kong have been detained while they haven’t been formally sentenced. Eric Lai, the Hong Kong law fellow at Georgetown University’s Center for Asian Law, says the NSL not only imposes a huge amount of pressure on Hong Kong’s judicial system, but it also seriously threatens the rights that defendants used to enjoy.

DW: On September 7, the Stand News in Hong Kong analyzed the data of those who have been arrested and detained by Hong Kong police after the NSL came into effect, and found that at least seven defendants have been detained for more than 200 days without being properly sentenced. Do you think this shows that the process of handling cases has gone through a lot of changes?

Eric Lai: In the past, defendants would usually be able to be released on bail, unless the judges think they have the risk of committing crimes again or the risk of escaping. In other words, being released on bail is supposed to be a right of the defendants.

However, since the anti-extradition bill in 2019, judges will impose many new restrictions in cases related to protests and enhance the bar for granting bail. And since NSL cases are ruled based on the security law, the principle of approving defendants’ right to be released on bail has also changed.

Judges first need to determine whether defendants will endanger national security or not, and after that, they might be released on bail. That particular clause has basically reversed the original principle of assuming granting bail is possible. It is also fundamentally different from how the courts used to handle criminal cases.

DW: Since the NSL came into effect, some experts think there are signs that laws are becoming tools for the Hong Kong government to achieve their political goals. How do you view such analysis?

Eric Lai: Among the cases highlighted by the Stand News, Tam Tak-Chi is detained under both the NSL charges and charges of inciting hatred through protest slogans, which is why the judges have refused to grant him bail. It shows that the move to deny bail not only occurs in NSL cases but also in other non-NSL cases, in which judges will use conditions under the NSL to decide not to approve defendants’ bail applications.

This change causes serious impacts on the defendants’ personal freedom. Additionally, the NSL has a very broad definition for crime, so speech crimes are possible under the NSL, even if it is forbidden in democratic countries. In NSL cases, judges will decide whether to approve bail applications or not based on whether the defendant is viewed as a threat to national security. For many judges in Hong Kong, this is a valid reason to deny defendants’ bail applications.

However, based on international standards, these considerations are not reasonable. The objective effect of such a decision-making process is that it forces defendants to be detained before they are formally sentenced, which is the so-called pretrial detention. It not only restricts defendants’ personal freedom, and even under the condition that defendants are presumed innocent, they have to first experience what it is like to be imprisoned even before they are formally sentenced.

Additionally, if the defendant is convicted in the future, the defendant’s sentence will actually be very long, so the judge may feel that if a person will be sentenced to 5 to 10 years in the future, it will not make much difference to the judge at this stage to imprison him before trial.

DW: How do you see the impact of the passage of the National Security Law on the judicial independence that Hong Kong used to guarantee?

Eric Lai: There is very little room to ensure judicial independence in NSL cases, because the Chief Executive will appoint judges to handle these cases and the Justice Department and the Chief Executive also have the power to change the trial procedures, including excluding a jury. They can also demand the acquirement of some data viewed as a threat to national security. These rights are all guaranteed under the NSL.

Moreover, the National Security Law clearly states that the NPC Standing Committee has the power to interpret the NSL, and that the National Security Council established in Hong Kong is not subject to judicial review or unconstitutional scrutiny.

The courts in Hong Kong have a lot of resources to hear national security law cases, and their decisions will take into account not only legal factors, but also political factors, such as the reaction of the NPC Standing Committee, or the media’s portrayal of the case and their evaluation of the judges, which all exert a lot of pressure.

In the case of Tong Ying-kit, there were many unreasonable and illogical points, but the judges could only rule according to the NSL, which reflects the fact that the judge was under great pressure.

DW: After the passage of the NSL, the Hong Kong government has used some laws from the colonial era to achieve its goals in non-NSL cases. Is this a worrying situation?

Eric Lai: For cases involving regular citizens or cases that occurred before the passage of the NSL, the government now uses laws that were used during the colonial era, such as incitement to prosecute these individuals.

The problem is that when these cases are brought to court, the judge will use the concepts and principles of the NSL to determine whether to grant bail to the defendants or not.

Recently, five members of the speech therapists’ union were charged with “conspiracy to print, publish, distribute, display or reproduce seditious publications” because they published children’s books.

But now the judge is using the NSL standard to override the original Hong Kong common law principle. This is a combination of the national security law standard and system with the local criminal system, and it is used to combat cases related to activities launched by the political opposition and to achieve a deterrent effect.

DW: Recently, we have seen that civil society organizations including the Hong Kong Alliance have been asked by the police to submit some information under the NSL, and many organizations have been forced to disband under pressure. What do you think about this kind of police practice of invoking the NSL to crack down on specific organizations?

Eric Lai: This practice runs counter to the original spirit of the rule of law in Hong Kong because before the NSL was introduced, investigations were conducted by law enforcement agencies.

But now, under Article 43 of the NSL, the police can request each organization to submit information to assist in the investigation, which in a way requires each organization to prove whether it has committed a crime or not.

This changes the common-law understanding in Hong Kong, which assumes that these organizations are innocent and then leaves it to the prosecution to prove whether they have committed a crime.

By requiring the defendant to provide evidence, the practice is intended to undermine the trust and solidarity of different organizations in civil society. On the other hand, they want to give law enforcement agencies more power to carry out political suppression. Such an approach is completely contrary to the common law principle of protecting the fundamental rights of every individual.

DW: Do you think the spirit and foundation of the rule of law in Hong Kong can still survive under the NSL?

Eric Lai: The spirit of the rule of law in Hong Kong, including judicial independence and equality before the law, is to promote Hong Kong to the international community as an international financial center worthy of investment.

So on the one hand, Hong Kong will tell external investors why the rule of law in Hong Kong is perfect, and now we can even explain to foreign investors that there are no problems with Hong Kong’s laws in the business and financial sector.

The rule of law in Hong Kong has been greatly impacted by the political aspect, and the government has used the law to combat political opposition. We can see that the implementation of the NSL has had a great impact on Hong Kong companies and the business community.

After the Hong Kong government prosecuted three Next Media executives under the NSL, it forced the board members of Next Media to resign in early September, indicating that the implementation of the NSL made it impossible for them to continue their operations.

This outcome is a big warning to the Hong Kong business community and foreign investors. If the Hong Kong and Chinese governments want to restore foreign investors’ confidence in Hong Kong, they should keep civil law intact and protect human rights politically, and the government should not abuse the power they have at will.

The interview was first published in Mandarin on DW’s Chinese website.