Civil liberties in the shadow of Hong Kong’s national security law – JURIST – Dossiers

Pro-democracy activist Jimmy Lai was sentenced to 13 months in prison by a Hong Kong court for his role in the banned Tiananmen Square vigils last year. He is already portion a 20-month prison sentence for his participation in unauthorized gatherings during the 2019 anti-extradition movement and this sentence will not extend his time behind bars.

Thousands of people in Hong Kong challenged a 2020 ban on police holding a candlelight vigil to mark the annual anniversary of the Tiananmen crackdown. Democracy advocates argue that authorities have deliberately used pandemic restrictions to restrict the right to assembly.

Lai who is also the founder of now gone The pro-democracy newspaper, Apple Daily, is one of the main targets of government efforts to curb free speech, dissent and implement the National Security Law (NSL), which was crafted by Beijing without any consultation with Hong Kong.

The Chinese government enacted the NSL following mass protests and social unrest in 2019, spurred on by the fact that there was no real prospect in sight that the Hong Kong government would be able to enact it from itself, as required by Article 23 of the Basic Law. the NSL designated four national security offenses – “secession, subversion, terrorist activities and collusion with a foreign country or with outside elements to endanger national security” and provided for severe penalties for anyone violating them.

The Hong Kong police’s decision to invoke the pandemic-related social distancing restrictions as a pretext to deny permission for marches or public gatherings raises a lot of questions because on the one hand the authorities have maintained their 4-person cap on public gatherings due to COVID, but on the other hand they relaxed social distancing rules for bars, restaurants and indoor banquets. Police rejected more than 30% of requests for public assembly in 2020, compared to almost zero in the past, impacting the right to freedom of assembly and procession. The government banned the annual July 1 march for the first time in 2020, citing COVID-19. Additionally, the annual June 4 vigil to commemorate the Tiananmen Square crackdown has been banned for the second consecutive time, despite weeks of Nope local cases of COVID-19. The deterrent effect of the NSL has been widely felt.

Relevance of the Basic Structure Doctrine to the Constitutionality of the NSL

The Basic Law was created in 1997 when Britain transferred sovereignty over Hong Kong to China under the “one country, two systems” principle. The Basic Law guarantees Hong Kong certain fundamental democratic and fundamental rights that are prohibited in mainland China.

The Basic Law is a basic national law enacted by the National People’s Congress (NPC) and ordinary national laws such as the NSL which are not even applicable in Hong Kong unless added to Schedule III of the Basic Law, should not prevail over the Basic Law. . This is why Hong Kong courts should test the constitutionality of the NSL in an appropriate case to preserve the sanctity of the Basic Law.

Courts may invoke the basic structure doctrine to declare unconstitutional the relevant parts of the NSL. This doctrine involved that certain aspects or provisions of a constitution are so fundamental that they cannot be changed even by constitutional amendment, legislation or interpretation. The relevance of the doctrine lies in the fact that although the NPC has the power to modify the Basic Law, such power does not extend to modifying its basic structure. Furthermore, this doctrine is incorporated into Article 159(4) of the Basic Law and clearly states that there should be no change in the “established basic policies of the Chinese government regarding Hong Kong”. These basic policies are listed in paragraph 3 of the Sino-British Joint Statement and thus incorporated into various provisions of the Basic Law. “The maintenance of national unity and territorial integrity” is one of those basic policies stipulated in paragraph 3 and the NSL could be justified as implementing this policy. But then paragraph 3 of the Joint Declaration also provides, among other things, that “The rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of movement, of circulation, of correspondence, strike, choice of profession, academic research and religious belief shall be guaranteed by law”. As we know, the NSL has impaired many of these rights. It also undermines the high degree of autonomy and independence of the Hong Kong judiciary. The NSL somehow changes the basic structure of the Basic Law and is therefore incompatible with Article 159(4) of the Basic Law.

Since the NSL clearly contravenes the basic structure of the Basic Law, Hong Kong should have jurisdiction to declare it unconstitutional. But it is highly unlikely that they will exercise this power in practice to avoid confrontation with the Chinese government.

Even Hong Kong courts, in some cases, give undue deference to executive and legislative decisions and have shown excessive deference to the National People’s Congress Standing Committee (NPCSC). This trend is also observed in the case of the NSL. The decision of the Court of Appeal in the Tong Ying pencil case is an example of such excessive deference, as it is problematic to conclude that “there can be no inconsistency between the NSL and the Basic Law” simply because the NSL states that “it is enacted pursuant to the Constitution of China and the Basic Law”. Law.” What this conclusion implies is that there would be no need for judicial review if a legislature declares the given law to be constitutional.

Narrow interpretation of NSL provisions

If Hong Kong courts are reluctant to declare the NSL or even a provision of it unconstitutional, then, as an alternative, they can at least regard the NSL as a law of “doubtful constitutionality” and draw a narrow interpretation from its provisions. which are consistent with the Basic Law and other international human rights laws applicable to Hong Kong. Since the NSL is likely to remain an integral part of Hong Kong’s legal system for the foreseeable future, courts should make full use of Articles 4 and 5 of the NSL, which form part of its general principles, to narrowly interpret the vague and broad provisions of the NSL to preserve human rights.

But so far, the courts have not been up to the task of interpreting the NSL narrowly. The courts have been reluctant to guarantee the right to bail in the cases decided so far. Section 42(2) of the NSL states that “no bail shall be granted to a suspect or accused who does not continue to commit acts endangering national security”. This provision is intended to overturn the general presumption of bail. However, if the judge has sufficient grounds to believe that the accused “will not continue to commit acts that endanger national security”, bail may still be granted.

Hong Kong courts have had occasion to interpret this provision in the case of Jimmy Lai. He was denied bail by the magistrate. However, the lower court, on appeal, granted him release under very strict conditions. In doing so, the Court relied on a few early cases holding that common law principles should be applied in interpreting the NSL and that Section 42 should be interpreted in accordance with the human rights guarantees enshrined in sections 4 and 5 of the NSL. When the Crown appealed this decision to the Supreme Court of Appeal (CFA), the CFA confirmed the broad interpretive approach taken by the Court of First Instance to preserve human rights and freedoms. However, it considered that the judgment of the Court “disregards the nature and the effect of the threshold requirement laid down” by Article 42(2) of the NSL. As a result, several people prosecuted under the NSL have offered to give up many of their rights and freedoms in the hope of securing bail, but with little success.

The NSL transformed Hong Kong from a liberal constitutional territory into a remnant part of a security state under the direct control of Beijing. The high degree of autonomy Hong Kong enjoys under the Basic Law has been significantly diluted in practice, as the NSL “provides the central authorities with the ideal vehicle to govern Hong Kong in a very direct and open manner”.

National security has become a global and transversal policy in all ministries. Almost everything, from elections to education, health, media, immigration, is subject to national security considerations subjectively determined by China and the Hong Kong government acting at Beijing’s behest.

Civil and political rights are restricted. The Jimmy Lai trial is an example in this context. Judges deciding NSL cases or dealing with applications for judicial review of politically sensitive government decisions are reluctant to make decisions that might displease Beijing or pro-Beijing media and politicians. The NSL is used as a tool to curb dissent, target political opponents and restrict civic space.

“Student at National Law University, Odisha, India and Editor and Associate Editor at JURIST.”

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