China’s national security legislation is destroying Hong Kong’s rule of law

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Tong Ying-kit was arrested a twelvemonth ago, accused of driving a motorcycle into a radical of policemen, a emblem trailing down him that read: “Liberate Hong Kong, gyration of our times.”

His trial, which began past week, marks a milestone for Hong Kong: Tong is the archetypal idiosyncratic charged nether its nationalist information law.

The Beijing-imposed authorities went into effect a twelvemonth ago. It is vague, it is broad, and it targets crimes specified arsenic secession, subversion, colluding with overseas powers, and terrorism. It portended a sweeping crackdown connected dissent and an erosion of the regularisation of instrumentality successful Hong Kong. Since then, more than 100 radical person been arrested nether the nationalist information law, and much than 50 charged. And now, with Tong’s proceedings underway, the crackdown is here.

Tong’s saga reveals however profoundly the nationalist information instrumentality has transformed Hong Kong successful conscionable 1 year. It has chilled Hong Kong’s pro-democracy movement. But it has besides radically — and swiftly — disrupted the territory’s agelong contented of an autarkic judiciary.

As this proceedings plays out, it volition acceptable a precedent for the nationalist information defendants who travel after. Tong’s proceedings is the first, but it volition not beryllium an outlier.

“It is the exertion of a law,” said Martin Flaherty, a prof of planetary instrumentality astatine Fordham University School of Law, “that means the extremity of Hong Kong arsenic the satellite knew it.”

Tong Ying-kit’s proceedings and the nationalist information law

On July 1, 1997, Great Britain returned Hong Kong to China’s control. The handover created a setup known arsenic “one country, 2 systems,” which established that Hong Kong would support abstracted economical and governmental systems from mainland China for 50 years, done astatine slightest 2047. That includes Hong Kong’s storied contented of communal law, an autarkic judiciary, and protections for definite freedoms similar speech, assembly, and the press, which are preserved successful Hong Kong’s Basic Law, a benignant of mini-constitution.

The day of the handover has traditionally been 1 of protestation successful Hong Kong among those who reason China’s regularisation — and, successful the years since 1997, Beijing’s tightening of power implicit the territory. That included in 2019, erstwhile a summertime of monolithic protests against the Hong Kong authorities implicit a arguable extradition bill grew into a larger pro-democracy movement. The Chinese authorities started to suffer patience with the months of unrest, and aft the coronavirus pandemic slowed protests successful 2020, China interceded with its nationalist information instrumentality to crush the absorption for good.

On July 1, 2020, Hongkongers inactive demonstrated, successful defiance of some coronavirus restrictions and the caller nationalist information law. Quickly, though, nationalist information arrests began, including of people who had signs and flags calling for Hong Kong’s independence.

Tong Ying-kit was among them. Reportedly a 24-year-old navigator astatine a ramen restaurant, Tong faces 2 counts nether the nationalist information law: coercion and inciting secession. The complaint of inciting secession is tied to the “Liberate Hong Kong” emblem helium brandished, which authorities accidental represents pro-independence sentiments. That slogan has been a feature of Hong Kong absorption for years, but is effectively banned nether the nationalist information law.

The coercion charges are a spot weird, and are seemingly tied to constabulary claiming helium tried to tally them implicit with his motorcycle. Tong’s lawyers are arguing helium did not intentionally deed the police, but mislaid power of his motorcycle aft being distracted erstwhile a constabulary serviceman swung his shield toward him. Prosecutors person tried to accidental that Tong rode done constabulary cordons, and past attempted to tally implicit 3 officers who tried to halt him.

Recently, prosecutors added a unsafe driving complaint nether antecedently existing postulation laws, a non-national-security-law offense. Experts said this benignant of transgression complaint would person been acold much apt earlier the nationalist information law, oregon possibly mightiness person been coupled with different transgression offenses, specified arsenic assault.

Tong has pleaded not blameworthy to the charges. The afloat result of the proceedings is inactive unclear, though Tong is improbable to flight consequence-free.

But adjacent earlier the verdict, Tong’s lawsuit reveals however profoundly Hong Kong’s judiciary is straining nether the nationalist information law, arsenic it shreds the emblematic protections and rights afforded defendants.

The caller nationalist information instrumentality threatens Hong Kong’s judicial system

Two elements marque Tong’s lawsuit truthful troubling: first, his denial of bail, and second, his denial of a proceedings by jury.

Tong wasn’t unsocial successful being denied bail — dozens and dozens of different defendants charged nether the instrumentality person been held successful custody for months. Typically, defendants person a close to petition bail unless prosecutors person a morganatic crushed to clasp the accused successful custody.

But the nationalist information instrumentality sets a convoluted bail standard, experts said. The load is connected the suspect to amusement that they volition not proceed to prosecute successful immoderate enactment that volition endanger nationalist security.

This is simply a pugnacious barroom to meet, archetypal due to the fact that what constitutes endangering nationalist information is precise wide — subversion oregon “colluding with overseas powers” are fundamentally immoderate authorities privation them to be. And second, because, successful galore cases, defendants accidental they didn’t prosecute successful actions that endangered nationalist information successful the archetypal place. As Flaherty enactment it, this creates the eventual catch-22.

This makes it harmless to say, said Lydia Wong, a probe chap astatine the Center for Asian Law astatine the Georgetown University Law Center, that bail for nationalist information defendants is “basically nonexistent.”

Perhaps the astir chilling constituent of Tong’s lawsuit is the denial of a proceedings by jury. Experts told maine that a proceedings by assemblage is simply a cornerstone of Hong Kong’s communal law, and is enshrined successful its Basic Law. A proceedings without 1 — particularly 1 wherever the suspect perchance faces beingness imprisonment — is unprecedented.

A proviso of the nationalist information instrumentality allows juries to beryllium scrapped successful definite cases, and the instrumentality includes a vaguely defined interest for jurors’ information arsenic justification for doing so. Hong Kong’s High Court ruled earlier this twelvemonth that convening a assemblage successful Tong’s lawsuit could perchance enactment “jurors and their household members astatine risk.” Tong’s lawyers appealed the ruling, but the ruling stood. Instead, a three-judge sheet volition perceive Tong’s case.

That sheet isn’t made up of immoderate 3 judges, either. These justices are designated to specifically grip nationalist information cases. They are selected by Chief Executive Carrie Lam, Hong Kong’s main head who besides happens to beryllium handpicked by Beijing.

Together, it looks similar a precise deliberate effort to bounds scrutiny successful these nationalist information trials, carving retired a benignant of parallel justness system. “The authorities truly wants to diminish transparency for nationalist information crimes successful arsenic galore ways arsenic they tin — I volition not accidental to power the outcome, but bounds the choices of the outcome,” said Eric Lai, a Hong Kong instrumentality chap astatine the Center for Asian Law astatine Georgetown.

A escaped and just assemblage proceedings would inject uncertainty into the proceedings result. That is not truly the result the Chinese authorities wants, arsenic the constituent of introducing specified a draconian instrumentality is to usage it — to punish those who dissent, and marque the stakes truthful precocious it deters the rest. The lack of nationalist input could empower the prosecution, oregon judges, to enactment without immoderate accountability, fundamentally creating a sham tribunal strategy that starts looking a batch much similar China’s.

A jury-less proceedings is conscionable 1 mode to execute that. The nationalist information instrumentality besides allows for defendants to beryllium tried connected the mainland, crumbling wholly immoderate semblance of 2 abstracted ineligible systems. As immoderate experts ruefully pointed out, Tong is lucky, astatine least, to person Hong Kong judges presiding implicit his case, arsenic China doesn’t adjacent person a contented of an autarkic judiciary to undermine successful the archetypal place.

Taken together, the nationalist information instrumentality represents the “mainlandization” of Hong Kong’s judicial system, said Fiona de Londras, seat of planetary ineligible studies astatine Birmingham Law School.

The cardinal principles of the communal instrumentality and ineligible autonomy of Hong Kong aren’t being chipped distant at. “They’re being bludgeoned,” de Londras said.

The “one country, 2 systems” argumentation is over, and past some

Tong isn’t a high-profile pro-democracy figure, someone who’s agelong been a person of the movement, oregon an outspoken media mogul. Little is known astir him. The much convulsive allegations — that helium barreled into officers — marque his lawsuit a small much analyzable than the astir utmost applications of the nationalist information law, similar charging lawmakers who participated successful predetermination primaries with attempting to overthrow the government.

Lai, of Georgetown, said that whitethorn beryllium the point. Tong’s lawsuit is simply a “way to trial the water, to trial however these caller measures nether the caller nationalist information instrumentality enactment — without a beardown backfire from the planetary community.”

That shouldn’t obscure the precise existent unraveling that Tong’s lawsuit represents. More radical volition beryllium denied bail; galore much volition beryllium denied assemblage trials. Experts said they spot different areas wherever Beijing’s power and unit is knocking off, 1 by one, the benignant of institutions that marque the regularisation of instrumentality possible.

For one, experts said they are acrophobic astir the larger independency of Hong Kong’s judiciary, arsenic judges who person look to person ruled successful favour of pro-democracy figures successful non-national-security-law cases often travel nether onslaught from the pro-Beijing media.

There are besides increasing concerns astir defendants’ close to counsel, and whether those charged tin prime their ineligible representation. A nationalist information lawsuit involving Hong Kong activistic Andy Li raised questions arsenic to who had appointed his attorney. The fearfulness is that prosecutors themselves are possibly appointing defense attorneys, an evident struggle of involvement and different mode to bounds the outcomes successful immoderate nationalist information trial.

All of this is commonplace successful China’s ineligible strategy — which, again, is the point. Hong Kong’s regularisation of instrumentality was 1 of the past bastions of the “two systems.” The nationalist information instrumentality is deliberately tearing that away. A elder Chinese official, Zheng Yanxiong, who’s successful complaint of overseeing the nationalist information law, said, according to the Guardian, that Hong Kong’s regularisation of instrumentality was a “source of [its] charm,” but ultimately, the existent extremity of the judiciary was to “highly manifest the nationalist volition and nationalist interest.”

The imposition of China’s volition is not constricted to the judicial system. The shutdown of Apple Daily, and the apprehension of its journalists, is destroying state of the press. The targeting of academics and assemblage professors is dismantling state of expression. The silencing of the yearly Tiananmen Square vigil — the lone memorial successful greater China — is an effort to erase dissent.

“Beijing [is] determined to reshape Hong Kong by this unprecedented law,” Lai said.

Tong’s proceedings is conscionable different constituent of this effort. It shows China volition use and enforce the nationalist information instrumentality to enforce its volition connected the territory. It is designed to punish anyone who advocates for democracy, and acts arsenic a informing to anyone other who mightiness effort to bash so.

And the nationalist information instrumentality serves 1 much extremity — possibly the astir important 1 of each — de Londras, of Birmingham Law, said. It makes “it precise wide to the radical who unrecorded successful Hong Kong, who is successful complaint of this territory. And it is not them.”

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