A Nail in the Coffin of Hong Kong’s Rule of Law

Media tycoon and pro-democracy activist Jimmy Lai has been the continued target of prosecution by the Hong Kong government. In a recent judgment, he has been convicted of fraud and handed a prison sentence of almost six years. As a result, another worrying development in a National Security Law (NSL) case against Lai, in which he is accused of inter alia conspiring to ‘collude with a foreign country or external elements’, has received significantly less attention. This concerns a 13 December ruling by the High Court of Hong Kong to adjourn the NSL trial until September 2023, in order for the Standing Committee of the National People’s Congress (NPCSC) to give an interpretation on whether foreign barristers are allowed to represent clients in NSL cases. In this blog post, I will use the NSL case against Jimmy Lai to examine some of the consequences of the NSL for the rule of law and the rights of defendants in Hong Kong.

Background of the National Security Law

Hong Kong and the Chinese mainland officially have two different legal systems: One Country, Two Systems (yiguo liangzhi 一国两制). In reality, however, the situation turns out to be different. Ever since the handover of Hong Kong to China in 1997, the Chinese government has attempted to expand its hold over the judicial and administrative system of Hong Kong. In 2014, the NPCSC decided in its 31 August Decision that candidates for the position of Chief Executive of Hong Kong have to be screened by a pro-Beijing nominating committee. This led to a 79-day occupation of the city by the so-called ‘Umbrella Movement’. In 2019, a proposed law that would allow the extradition of fugitives from Hong Kong to the Chinese mainland gave rise to further protests. This time, Beijing reacted with the adoption of the National Security Law, which critics deem a fundamental threat to the functioning of Hong Kong’s civil society. Additionally, the NPCSC introduced a ‘patriotic’ electoral reforms law, which prescribes a screening of Hong Kong parliamentarians regarding their loyalty to the mainland.

Jimmy Lai: Thorn in the side of Beijing

Jimmy Lai has been a central figure in the Hong Kong protest movements. He is a prominent critic of the Chinese Communist Party and is committed to strengthening democracy in Hong Kong. Through his newspaper Apple Daily, founded in 1995, he aimed to contribute to protecting the right to freedom of expression in Hong Kong. For this, he received the Freedom of Press Award from Reporters Without Borders. On August 10, 2020, Hong Kong police raided Apple Daily’s headquarters on the basis of the NSL, and on June 17, 2021, Hong Kong froze the newspaper’s assets, which marked the end of Apple Daily in Hong Kong. As mentioned, several trials have been initiated against Lai by the Hong Kong government. Aside from the recent conviction of fraud, which has been heavily criticized by inter alia the US, he was also sentenced to 14 months in prison for his role in an unauthorized gathering in memory of the victims of the 1989 Tiananmen demonstrations.

The National Security Law in the trial against Lai

Since the charge of collusion with foreign countries or external elements for which Lai stands trial is based on the NSL (Article 29(4)), this allows the circumvention of essential rule of law guarantees enshrined in Hong Kong’s Basic Law. The first of these guarantees concerns judicial independence (Articles 2, 19 and 85 HK Basic Law). Although the Chinese government claims that judicial independence in Hong Kong remains ‘solid and robust’, the text of the NSL suggests otherwise. In fact, Article 44 of the NSL requires judges hearing NSL cases to be appointed by the Chief Executive of Hong Kong. Judges may not hear national security cases if ‘he or she has made any statement or behaved in any manner endangering national security.’ As the trial against Lai has also been classified as a national security case, his judges have been appointed by the executive branch. Researchers at Georgetown University argue that appointing special judges for cases under the NSL, among other things, constitutes a ‘direct assault’ on Hong Kong’s rule of law.

A second issue especially relevant to the Jimmy Lai trial is the right to legal counsel. In this regard, it should be noted that the NSL contains no formal restrictions on the freedom to choose your own lawyer as laid down in Article 35 HK Basic Law. Accordingly, the choice of lawyer is not a formal point of dispute in the vast majority of national security cases, although sometimes the accused ‘voluntarily’ switches to a pro-Beijing lawyer. In the Lai trial, however, the Secretary for Justice opposes the High Court’s decision under Article 27(4) of Legal Practitioners Ordinance (CAP 159) to admit the British barrister Timothy Wynn KC as ad hoc counsel. In this regard, the Secretary for Justice puts forward as main argument that allowing legal representation by a foreign lawyer would be contrary to the national security nature of the trial. According to the Secretary for Justice, matters in the context of the NSL are ‘unique and specific’ and ‘the concept of ‘national security’ is inevitably intertwined with the social, political and constitutional context of the State’. Even the judges appointed by the Hong Kong government found these arguments unconvincing, and the Secretary for Justice was unsuccessful in a series of appeals. Therefore, Chief Executive of Hong Kong John Lee has asked the NPCSC for a more favourable interpretation of the NSL.

This brings me to the third point of why the Lai NSL trial is particularly consequential. This concerns the impact of the trial on Beijing’s power to interpret the laws of Hong Kong. If the NPCSC goes on to deliver an interpretation, this will only be the sixth time that the NPCSC has given an interpretation of Hong Kong legislation. Although the ability of the NPCSC to make a final interpretation regarding Hong Kong law has long been enshrined in the HK Basic Law, the relevant Article 158 is vaguely worded and limited to a number of specific situations. The NSL, on the other hand, contains a lex specialis (Article 65), which unequivocally states that the NPCSC has the final say when it comes to the interpretation of the NSL. However, the provision does not contain a mechanism to provide for a solution should the High Court of Hong Kong disagree with the NPCSC’s interpretation.  Worryingly, several pro-Beijing media outlets have already suggested moving the trial to mainland China.

Finally, two other infringements on constitutional guarantees in the Lai trial need to be mentioned. Firstly, the Secretary for Justice ordered a no-jury trial for Lai’s case in accordance with Article 46 of the NSL. This article reflects a departure from the long tradition of trial by jury in the Hong Kong legal system, which is enshrined in Article 86 of the HK Basic Law. A no-jury trial can be called unilaterally by the prosecution and ‘reference to ‘a jury’ or ‘a verdict of the jury’ in any provision of the laws of the Hong Kong … shall be construed as referring to the judges’. Secondly, Article 42 of the NSL significantly curtails pre-trial release (bail). Consequently, defendants in NSL cases are mostly denied bail. Bail is only allowed, if ‘the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security’. Jimmy Lai has been detained since December 2020, when he was charged under the NSL.

Conclusion

The ongoing National Security Law trial against Jimmy Lai illustrates how the rule of law in Hong Kong is rapidly on the decline. The Hong Kong government can appoint judges of its own choosing, the right to counsel and jury trial is under threat, defendants are denied bail in the majority of cases, and the NPCSC has a finger in the pie when it comes to the interpretation of Hong Kong laws. And I haven’t even mentioned the far-reaching expansion of investigative and surveillance means available to the police under the NSL. Within the unique constitutional context of the relationship between Hong Kong and mainland China, the Lai trial raises the question whether we should speak of One Country, One System (yiguo yizhi 一国一制), instead of One Country, Two Systems.