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Hong Kong’s legal system bears the scars of the security law

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Attorney Michael Fisher wrote one of the top university textbooks on Hong Kong’s legal system in 2019 but it is already obsolete.

Last year, China imposed a national security law on the territory, under which one of its former students, from his years teaching at Hong Kong universities, has already been arrested.

“I was just released [the book] two years ago, now we need to rewrite it completely, ”Fisher said.

The introduction of the security law foreshadowed swept changes to Hong Kong’s political and civil society aimed at suppressing dissent and integrating more closely the city with the mainland following anti-government protests in 2019.

Many entrepreneurs in Hong Kong also believe that the changes will save the courts in the territory, which are based on the UK’s common law legal system and seen as integral to the city’s role as international financial center.

But a year later, analysts say the law will quickly undermine legal norms in the city, such as the presumption of innocence and the right to side with cases involving the security law. Judges are also shown to have less influence over these cases.

Crossed by the Beijing rubber press parliament and imposed on Hong Kong, the law broke the firewall that had separated the territory’s legal system from mainland China, allowing suspects for the first time to be tried across the border. . His vaguely defined crimes, including subversion and collusion with foreign forces, are punishable by life imprisonment. Critics say it threatens the freedoms guaranteed to Hong Kong in its transfer from the UK to China in 1997. Those charged under the law fear they will not get a fair trial.

“The lowest fee for a lawyer for a day is HK $ 75,000 ($ 9,655),” the husband of a politician who was denied bail under the law told the Financial Times, explaining why the couple had not also decided on a lawyer despite a court date set. “[But] it won’t make a difference though because the case is entirely political. “

A total of 117 people have been arrested under the law, including a 15-year-old man, while 64 have been charged, according to the Hong Kong Security Bureau. Many of them were denied bail

In another break with the city’s common law tradition, a judge recently ruled in a case involving the security law that there was no constitutional right to a jury trial.

No case of security law has yet been concluded, but legal experts say preliminary rulings show the judiciary has only so much power to mediate its impact.

“The national security law makes it clear that it has primary status,” said Bing Ling, a Chinese law expert at the University of Sydney.

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Once unknown, Chinese state media and officials are even commenting more and more on Hong Kong’s legal cases.

When a judge briefly allowed pro-democracy media mogul Jimmy Lai to be released, in December, China’s state media threatened the Hong Kong judiciary that if it could not be treated “correctly” business, the courts of the continent take the upper hand. After an appeal, Lai’s bail was revoked. He was later imprisoned in Hong Kong on separate charges.

Analysts said the excessive policing has also weighed on the legal system. A 37-year-old man was arrested last week for taking up stickers outside his home in support of the protests.

“Many acts that were not previously treated as criminals, particularly certain forms of political expression, are now illegal,” said Ryan Mitchell, a law scholar at the Chinese University of Hong Kong.

Fears for the independence of the judiciary increased in September last year, when Carrie Lam, the city’s mayor, contradicted top judges who say there is no separation of powers in the territory between executives. , the legislature and the judiciary.

For Beijing, legal system reforms have been justified by the 2019 protests, which show that the city’s “general legal order” had been “significantly undermined,” according to Han Zhu, a research professor at the University. in Hong Kong.

China believes that the territory’s legal system needs to prioritize the country’s national constitution, rather than Hong Kong’s mini-constitution, the Basic Law, which guarantees rights such as freedom of expression. «U [security law] it is certainly not the end, but the beginning of the process of legal and political reconstruction, ”Zhu wrote.

Zhou Qiang, chairman of the Chinese Supreme Court, had told the Hong Kong judiciary to “fully implement” a Chinese government policy to ensure that everyone in leading positions in the city is a patriot. The FT revealed last month how pro-Beijing politicians had intervened in the appointment of a Hong Kong first judge – a process that was once largely free of political interference. This opened a potential path for Beijing to more directly influence the selection of new judges.

For the Hong Kong judiciary, whose tradition of independence has long attracted multinationals seeking to establish their Asia-Pacific headquarters in the city, the real process can only begin.

“Judicial independence is the key difference between Hong Kong and the mainland. . . and the feature of Hong Kong most despised by Beijing, ”said Fisher, the lawyer.


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