>[T]wo new laws have transformed the legal landscape. The first was the National Security Law (NSL), promulgated by the legislature in Beijing in 2020. It created sweeping, fuzzy categories of crime that Hong Kong had not known before, such as secession, subversion and the collusion of which Mr Lai stands accused. The other was last year’s “Article 23 legislation”. It imposed tougher sentences for offences related to national security and ditched a requirement that the crime of sedition (which existed before the NSL) should be linked to violence.
>Business people still seem bullish—increasingly so, even. The American Chamber of Commerce in Hong Kong regularly surveys its members about how they feel. In January 83% said they were confident in the territory’s legal order. In 2022 only about a quarter felt that way. Their assumption seems to be that the authorities will target activists and leave business alone. But the new laws feel oppressive to many Hong Kongers. Large, peaceful protests, once common, no longer happen. Government critics fear speaking out.
>The legislation also weighs heavily on the courts. Judges lack precedent they can draw on for determining how to understand new legal parameters. Almost all the 78 concluded cases under the NSL have resulted in guilty verdicts, but appeals abound. It may take years for these to work through the system. That process will help provide more clarity about where exactly the law’s red lines are.
>Legal blows against dissent raise questions about Hong Kong’s judicial independence. The territory still ranks highly on global rule-of-law indices. In 2019 it 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 the NSL Hong Kong has fallen only slightly to 23rd (out of 142), keeping its lead over America, which trails at 26th. (Mainland China has fallen from 88th in 2020 to 95th, just above Tanzania.)
>But Hong Kong’s overall score masks a sharp deterioration in one category: fundamental rights. In this area it has fallen from 33rd—six places behind America—to 62nd (25 behind). It is still far ahead of mainland China (close to bottom at 139th). Clearly, however, it has changed, with its courts now regularly jailing people for dissident activities that once would have been allowed. Critics wonder if judges are taking cues from Chinese officials, and to what degree the system is becoming more like that of the mainland. There the Communist Party, not the judiciary, determines the outcome of cases that involve matters relating to its interests.
# Wigs and gowns
>Officials counter that the territory’s judicial system is as robust as ever. A senior adviser to Hong Kong’s government, Ronny Tong—himself a lawyer—dismisses suggestions that the judiciary is pliant. He calls allegations of political pressure on judges a “very unjustified myth”. Leaders in Beijing are adamant that they want to protect the territory’s common-law system.
>In cases not involving dissent, this system indeed remains intact. And even in trials of political activists, Hong Kong’s courts still operate very differently from those of the mainland, where such events are often pro-forma, usually wrapped up in days and without media access. In Hong Kong they can last months, with evidence and witness testimony argued over in detail. Journalists can watch and report. There is no sign that the Communist Party intervenes directly in trials as it does on the mainland, where outcomes in politically sensitive cases are determined by its shadowy “political-legal” committees.
>Yet the party has other ways of influencing outcomes. **The NSL and Article 23 legislation allow related trials to be held without a jury—they now always are. Verdicts in these sorts of case are reached by three judges chosen from a special pool. Its members have renewable year-long terms, but the NSL says that if a judge “makes any statement or behaves in any manner endangering national security” while doing the job, they can be dismissed from the pool.** China’s rubber-stamp parliament has the final say in the NSL’s interpretation. The Communist Party sees criticism of its rule as a national-security threat.
>Disquiet is mounting. The territory’s Court of Final Appeal (CFA) has invited both local and overseas judges onto its bench since the handover. The latter came from other common-law jurisdictions such as Australia and Britain and took up temporary seats. Five foreigners have quit the CFA since 2022; some have cited concerns about the political environment. (There is little chance a visiting overseas judge would be chosen to adjudicate an NSL case in the CFA, though foreign judges who are resident in Hong Kong have done so.)
>One trigger was a case involving 47 people who were accused of subversion for their roles in organising an unofficial primary election to maximise the chances of opposition politicians taking control of the legislature, and using that majority to force Hong Kong’s leader to step down (its constitution allows that). Two were acquitted; the remainder were sentenced to between four and ten years in prison last year.
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Archived version: https://archive.fo/nmjAW.
>[T]wo new laws have transformed the legal landscape. The first was the National Security Law (NSL), promulgated by the legislature in Beijing in 2020. It created sweeping, fuzzy categories of crime that Hong Kong had not known before, such as secession, subversion and the collusion of which Mr Lai stands accused. The other was last year’s “Article 23 legislation”. It imposed tougher sentences for offences related to national security and ditched a requirement that the crime of sedition (which existed before the NSL) should be linked to violence.
>Business people still seem bullish—increasingly so, even. The American Chamber of Commerce in Hong Kong regularly surveys its members about how they feel. In January 83% said they were confident in the territory’s legal order. In 2022 only about a quarter felt that way. Their assumption seems to be that the authorities will target activists and leave business alone. But the new laws feel oppressive to many Hong Kongers. Large, peaceful protests, once common, no longer happen. Government critics fear speaking out.
>The legislation also weighs heavily on the courts. Judges lack precedent they can draw on for determining how to understand new legal parameters. Almost all the 78 concluded cases under the NSL have resulted in guilty verdicts, but appeals abound. It may take years for these to work through the system. That process will help provide more clarity about where exactly the law’s red lines are.
>Legal blows against dissent raise questions about Hong Kong’s judicial independence. The territory still ranks highly on global rule-of-law indices. In 2019 it 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 the NSL Hong Kong has fallen only slightly to 23rd (out of 142), keeping its lead over America, which trails at 26th. (Mainland China has fallen from 88th in 2020 to 95th, just above Tanzania.)
>But Hong Kong’s overall score masks a sharp deterioration in one category: fundamental rights. In this area it has fallen from 33rd—six places behind America—to 62nd (25 behind). It is still far ahead of mainland China (close to bottom at 139th). Clearly, however, it has changed, with its courts now regularly jailing people for dissident activities that once would have been allowed. Critics wonder if judges are taking cues from Chinese officials, and to what degree the system is becoming more like that of the mainland. There the Communist Party, not the judiciary, determines the outcome of cases that involve matters relating to its interests.
# Wigs and gowns
>Officials counter that the territory’s judicial system is as robust as ever. A senior adviser to Hong Kong’s government, Ronny Tong—himself a lawyer—dismisses suggestions that the judiciary is pliant. He calls allegations of political pressure on judges a “very unjustified myth”. Leaders in Beijing are adamant that they want to protect the territory’s common-law system.
>In cases not involving dissent, this system indeed remains intact. And even in trials of political activists, Hong Kong’s courts still operate very differently from those of the mainland, where such events are often pro-forma, usually wrapped up in days and without media access. In Hong Kong they can last months, with evidence and witness testimony argued over in detail. Journalists can watch and report. There is no sign that the Communist Party intervenes directly in trials as it does on the mainland, where outcomes in politically sensitive cases are determined by its shadowy “political-legal” committees.
>Yet the party has other ways of influencing outcomes. **The NSL and Article 23 legislation allow related trials to be held without a jury—they now always are. Verdicts in these sorts of case are reached by three judges chosen from a special pool. Its members have renewable year-long terms, but the NSL says that if a judge “makes any statement or behaves in any manner endangering national security” while doing the job, they can be dismissed from the pool.** China’s rubber-stamp parliament has the final say in the NSL’s interpretation. The Communist Party sees criticism of its rule as a national-security threat.
>Disquiet is mounting. The territory’s Court of Final Appeal (CFA) has invited both local and overseas judges onto its bench since the handover. The latter came from other common-law jurisdictions such as Australia and Britain and took up temporary seats. Five foreigners have quit the CFA since 2022; some have cited concerns about the political environment. (There is little chance a visiting overseas judge would be chosen to adjudicate an NSL case in the CFA, though foreign judges who are resident in Hong Kong have done so.)
>One trigger was a case involving 47 people who were accused of subversion for their roles in organising an unofficial primary election to maximise the chances of opposition politicians taking control of the legislature, and using that majority to force Hong Kong’s leader to step down (its constitution allows that). Two were acquitted; the remainder were sentenced to between four and ten years in prison last year.