National Security Law Is Curtailing The Right To A Fair Trial In Hong Kong

The National Security Law has been having a profound effect on the right to a fair trial and the rule of law in Hong Kong. According to reports, more than 160 people have been arrested under the National Security Law since it was introduced in June 2020. The majority of them being human rights defenders, journalists and opposition politicians. Over 50 non-governmental organizations were forced to close since the enactment of the controversial law.

In January 2022, Hong Kong authorities arrested 53 pro-democracy politicians and activists, on suspicion of “subversion”, namely of undermining the power or authority of the central government. In August 2022, media reported that the prosecution had named five of the defendants as “major organizers,” facing up to life in prison, and 47 facing being prosecuted for “conspiracy to commit subversion.”

On May 11, 2022, Cardinal Joseph Zen Ze-kiun, bishop emeritus of Hong Kong, was arrested by security police on accusations of “conspiracy to collude with foreign forces,” under the National Security Law. While that investigation continues, he faces trial on charges alleging that, as a trustee, he and five others failed to register a now-defunct aid fund for pro-democracy protests.

This crackdown on human rights defenders was also followed by reports suggesting that the right to a fair trial, as per international standards, has been denied.

Several actors have raised the issue of human rights defenders being denied the right to a fair trial. Among others, as the U.S. State Department stressed, “arrests and prosecutions appeared to be increasingly politically motivated.”

Those charged under the National Security law were often denied bail or the threshold for bail was higher. Bail conditions, adjudicated by specially designated national security judges, require the defendant to show that he or she would not continue to commit acts endangering national security. Reportedly, “Jeremy Tan, a former pan-democratic politician facing [National Security Law] charges, was denied bail in part based on an email invitation from a foreign consulate, while another former lawmaker, Claudia Mo, was denied bail in part based on interviews and text messages with international press.” Cheung Kim-hung, chief executive officer of Apple Daily parent company Next Digital was denied bail “in apparent response to international condemnation of the executive’s arrest as an infringement on freedom of the press. Prosecutors cited a statement by the Media Freedom Coalition, signed by 21 governments, as well as a separate statement by the United Kingdom foreign secretary, as evidence of a close association between Cheung and ‘foreign political groups’.”

The defendants are often denied the right to a jury trial and face trial before a panel of three specially designated national security judges. Indeed, the National Security Law established a separate procedure for investigation, prosecution and trial of those suspected under the National Security Law.

Furthermore, those prosecuted under the National Security Law can be deprived of a public trial if there is suggestion that national secrets may be revealed. Lastly, many face extradition to the mainland for trial.

In light of this deteriorating situation in Hong Kong, on March 30, 2022, the U.K. Foreign Secretary issued a statement in support of the withdrawal of serving U.K. judges from the Hong Kong Court of Final Appeal. As the then Foreign Secretary Liz Truss commented, “the situation has reached a tipping point where it is no longer tenable for British judges to sit on Hong Kong’s leading court, and would risk legitimizing oppression.”

As the trials under the National Security Law continue, it is likely that more concerns in relation to the right to a fair trial will resurface. Independent trial monitoring of the trials under the National Security Law is crucial and must be accommodated by courts in Hong Kong.