Next Digital founder Jimmy Lai (黎智英) was accused of colluding with foreign forces under the National Security Law imposed on Hong Kong by Beijing in 2020. Since then, Lai has been imprisoned for more than 1,000 days. His trial began on Wednesday and is expected to last for 80 days.
Some argue that such a long trial demonstrates the independence of the Hong Kong judicial system, whereas others argue that the apparent independence is only symbolic.
In 2020, China’s National People’s Congress Standing Committee designed the National Security Law for Hong Kong and passed it, becoming an appendix to Hong Kong’s Basic Law. The security law and the Basic Law therefore share the same legislative status and have the same regulatory power.
Additionally, the committee has the power to interpret the law as it sees fit. For instance, when Lai wanted British lawyer Timothy Owen to represent him, Hong Kong’s Department of Justice insisted on objecting, saying the case might be influenced by foreign forces.
Eventually, Hong Kong’s Court of Final Appeal barred Owen’s team. It bears mentioning that it was China’s top lawmaking body — the National People’s Congress Standing Committee— that gave Hong Kong Chief Executive John Lee (李家超) the power to bar foreign lawyers.
Under the National Security Law, the statutory penalties are extremely heavy, and yet the elements of crime are ambiguously defined. For instance, Lai was charged under Article 29, which criminalizes “colluding with a foreign country or with external elements to endanger national security.”
However, the law’s wording and phrasing, such as “seriously undermining the sovereignty, unification and territorial integrity of China” and “seriously disrupting the formulation and implementation of laws and policies by the Hong Kong Special Administrative Region government,” are vague and imprecise.
Even so, if Hong Kong’s National Security Law is to be carried out with the due process of law and by a jury, people would not be arbitrarily criminalized. However, as specified in Article 46, if the offense concerns the endangerment of national security, the Secretary for Justice can order that the case be tried without a jury, on the grounds of protecting national secrets or the jurors’ and their family’s personal safety. The reasons, again, are vaguely defined.
Lai’s case was dealt with in accordance with Article 46. All in all, under the National Security Law, Hong Kongers’ right to a jury trial has been violated, judicial power is undermined by the executive power, and hence, the people are deprived of their most powerful means to fight against wrongful legislation.
Without a jury, Lai’s case also shows that judicial independence is under threat. Article 44 states that if any cases concern national security, the Hong Kong chief executive has the authority to designate judges to those cases. Moreover, any judges whose behavior and remarks are considered to endanger national security are excluded from being appointed. In other words, only judges considered “politically correct” are eligible to try Lai’s case. Whether a judge is politically correct is at the discretion of Hong Kong’s chief executive.
Many believe that Lai’s trial is a test of Hong Kong’s judicial independence. However, under the National Security Law, whose framework and content are controlled by China’s National People’s Congress Standing Committee, which has the ultimate power to interpret the law, it is highly doubtful whether a fair trial could be achieved at all.
Wu Ching-chin is a professor in Aletheia University’s Department of Law and director of the university’s Criminal Law Research Center.
Translated by Emma Liu
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