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CLose arguments are underway in the trial of the most famous media magnate in Hong Kong. Jimmy Lai’s publications applauded the millions of people against the territory government in 2019. The charismatic billionaire could have fled. But Mr. Lai remained and is now accused of sedition and collusion with foreign forces. The verdict should be returned in a few weeks or months; Few observers doubt that the 77 -year -old man will be found guilty. Already serving another prison sentence, he could incur a life sentence for life.
In the wake of the troubles, which became violent, the Communist Party in power of China has designed radical changes in the laws of Hong Kong to avoid more upheavals. These are used to even crush peaceful activism which is considered a threat to the party or the government in Hong Kong.
This was not how it was supposed to be after Great Britain resumed Hong Kong in China in 1997. China promised to preserve freedoms. It allowed Hong Kong to maintain a legal system of the common law, which put the bar high to put dissidents in prison. But two new laws have transformed the legal landscape. The first was the national security law (Nsl), promulgated by the Beijing Legislative Assembly in 2020. He created radical and vague categories of crime that Hong Kong had not previously experienced, such as secession, subversion and collusion with which Mr. Lai is accused. The other was the legislation “Article 23” from last year. He imposed more stringent sentences for offenses related to national security and abandoned a requirement according to which the crime of sedition (which existed before the Nsl) must be linked to violence.
Business people still seem optimistic – completely the case, even. The American Chamber of Commerce in Hong Kong regularly examines its members about the way they feel. In January, 83% said they were confident in the legal order of the territory. In 2022, only about a quarter looked like this. Their hypothesis seems to be that the authorities will target activists and will leave business alone. But the new laws feel oppressive for many Hong Kongers. Large peaceful protests, formerly common, no longer occur. Government criticism fear to speak.
The legislation also weighs heavily on the courts. The judges lack the previous one on which they can rely to determine how to understand the new legal parameters. Almost all 78 cases concluded under the Nsl have resulted in guilt verdicts, but calls abound. This can take years that they work through the system. This process will help give more clarity on the red situation of the law.
The legal blows against dissent raise questions about the judicial independence of Hong Kong. The territory is still very well ranked on global law indices. In 2019, he was placed 16th by the World Justice Project, an American NGO. America was 20th on its list of 126 countries and territories. Since the imposition of Nsl Hong Kong only fell slightly at 23rd (out of 142), keeping its lead on America, which drags in the 26th. (Continental China fell from 88th in 2020 to 95th, just above Tanzania.)
But the global partition of Hong Kong masks a strong deterioration in a category: fundamental rights. In this area, it fell from 33rd – six places behind America – to 62nd (25 behind). It is still well in advance on continental China (near the bottom at the 139th). Obviously, however, he changed, his courts by regularly imprisoning regularly for dissident activities which were formerly authorized. Critics wonder if the judges are inspired by Chinese officials and, to what extent the system looks more like that of the continent. There, the Communist Party, not the judiciary, determines the outcome of the cases which involve questions relating to its interests.
Wigs and dresses
The authorities contact that the territory’s judicial system is still as robust. A main adviser to the government of Hong Kong, Ronny Tong – following a lawyer – said the suggestions that the judiciary is flexible. He calls allegations of political pressure on judges a “very unjustified myth”. Beijing leaders are categorical that they want to protect the territory’s common law system.
In cases not implying dissent, this system remains intact. And even in the trials of political activists, the courts of Hong Kong still operate very differently from those on the continent, where such events are often pro-forma, generally wrapped in days and without access to the media. In Hong Kong, they can last for months, with evidence and testimonial testimonies argued in detail. Journalists can watch and report. There is no sign that the Communist Party intervenes directly in the tests as on the continent, where the results in politically sensitive cases are determined by its dark “political judge” committees.
However, the party has other ways of influencing the results. THE Nsl And article 23 The legislation allows related trials to be kept without jury – they are now still. Verdicts in this type of case are rendered by three judges chosen in a special swimming pool. Its members have renewable conditions of one year, but the Nsl Said that if a judge “makes a declaration or behaves in a way in danger of national security” while doing the work, he can be rejected from the swimming pool. Chinese rubber parliament has the last word in the Nslinterpretation. The Communist Party considers criticism of its reign as a national security threat.
The concern rises. The final court of appeal of the territory (CFA) has invited local and foreign judges on his bench since the transfer. The latter came from other jurisdictions of the common law such as Australia and Great Britain and took temporary seats. Five foreigners left the CFA since 2022; Some have cited concerns about the political environment. (There is little chance that a judge abroad is chosen to judge a Nsl case in the CFAAlthough the foreign judges who live in Hong Kong have done so.)
A trigger was a case involving 47 people accused of subversion for their role in the organization of an unofficial primary election in order to maximize the chances that opposition politicians take control of the legislative assembly, and by using this majority to force the head of Hong Kong to resign (its constitution permits). Two have been acquitted; The rest was sentenced between four and ten years in prison last year.
Quoting their treatment, Lord Somper, formerly of the British Supreme Court, left the CFA After four and a half years in service. “It seemed to me that in cases, in particular the criminal affairs on which the Chinese government was known to feel strongly, the courts were not ready to operate independently of the wishes of China,” he said. The Hong Kong government rejects its opinions. In a declaration of nearly 3,000 words in June 2024, he declared that any suggestion that judicial independence was compromised “would be completely wrong, completely baseless and must be refuted with justice”.
For judges, these are difficult times in poorly advanced territory. Lord Sumption recalls a “very senior” telling him that the West offers only the second passports and moral conferences. “We have nowhere to go, unlike you,” he said the judge. “What should we do?” We are unable to conduct a guerrilla warfare against China. And if we were trying, we would probably get something worse. We have to face realities. “
Many judges may not be liberals anyway. China insists that they must be “patriotic”, which, in its opinion, implies accepting the monopoly of party power. A law professor says that some have not studied human rights law. THE Nsl requires Hong Kong to adhere to AndInternational Covenant on Civil and Political Rights. But the judges know that any attempt to apply these principles in a way that prevents the game from being done to end with frustration. The party clearly shows its views using its local mouths, in particular two newspapers Your kung pao And Wen Wei Po. They even portray peaceful demonstrators as guilty of heinous crimes against the state.
Many calls should ultimately end up CFA; Some may be maintained. In March, he canceled the convictions of three former members of a now dissociated pro-democracy group, the Hong Kong Alliance. It was a rare exemption from activists by the highest courtyard in the territory. But it was on technicality. One of them, as well as other former leaders of the group, should be tried in November for more serious charges. And when party interests could be affected, the Hong Kong government sometimes invites Chinese Parliament to intervene. In 2022, the national legislature enabled the territory to bypass a CFA Declaring that Mr. Lai’s defense team could use a lawyer abroad.
Over time, the strength of the judiciary can erode like the best lawyers in Hong Kong avoids taking the work. “A large part of the brilliant of a judicial appointment has disappeared with the feeling that the judges are no longer as independent as before,” said Lord in consumption. The law professor says that new law students are barely remembered six years ago. They “do not associate 2019 with something positive,” he said. Neither did the Communist Party. ■
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