Tong Ying-kit was arrested a yr in the past, accused of driving a motorbike into a bunch of policemen, a flag trailing behind him that learn: “L
Tong Ying-kit was arrested a yr in the past, accused of driving a motorbike into a bunch of policemen, a flag trailing behind him that learn: “Liberate Hong Kong, revolution of our occasions.”
His trial, which started final week, marks a milestone for Hong Kong: Tong is the primary individual charged underneath its nationwide safety regulation.
The Beijing-imposed laws went into impact a yr in the past. It’s imprecise, it’s broad, and it targets crimes resembling secession, subversion, colluding with international powers, and terrorism. It portended a sweeping crackdown on dissent and an erosion of the rule of regulation in Hong Kong. Since then, greater than 100 folks have been arrested underneath the nationwide safety regulation, and greater than 50 charged. And now, with Tong’s trial underway, the crackdown is right here.
Tong’s saga reveals how deeply the nationwide safety regulation has reworked Hong Kong in only one yr. It has chilled Hong Kong’s pro-democracy motion. But it surely has additionally radically — and swiftly — disrupted the territory’s lengthy custom of an impartial judiciary.
As this trial performs out, it’s going to set a precedent for the nationwide safety defendants who come after. Tong’s trial is the primary, but it surely won’t be an outlier.
“It’s the software of a regulation,” stated Martin Flaherty, a professor of worldwide regulation at Fordham College College of Regulation, “which means the top of Hong Kong because the world knew it.”
Tong Ying-kit’s trial and the nationwide safety regulation
On July 1, 1997, Nice Britain returned Hong Kong to China’s management. The handover created a setup often called “one nation, two techniques,” which established that Hong Kong would preserve separate financial and political techniques from mainland China for 50 years, via not less than 2047. That features Hong Kong’s storied custom of widespread regulation, an impartial judiciary, and protections for sure freedoms like speech, meeting, and the press, that are preserved in Hong Kong’s Primary Regulation, a form of mini-constitution.
The date of the handover has historically been certainly one of protest in Hong Kong amongst those that oppose China’s rule — and, within the years since 1997, Beijing’s tightening of management over the territory. That included in 2019, when a summer time of huge protests towards the Hong Kong authorities over a controversial extradition invoice grew into a bigger pro-democracy motion. The Chinese language authorities began to lose endurance with the months of unrest, and after the coronavirus pandemic slowed protests in 2020, China interceded with its nationwide safety regulation to crush the resistance for good.
On July 1, 2020, Hongkongers nonetheless demonstrated, in defiance of each coronavirus restrictions and the brand new nationwide safety regulation. Shortly, although, nationwide safety arrests started, together with of people that had indicators and flags calling for Hong Kong’s independence.
Tong Ying-kit was amongst them. Reportedly a 24-year-old prepare dinner at a ramen restaurant, Tong faces two counts underneath the nationwide safety regulation: terrorism and inciting secession. The cost of inciting secession is tied to the “Liberate Hong Kong” flag he brandished, which authorities say represents pro-independence sentiments. That slogan has been a function of Hong Kong resistance for years, however is successfully banned underneath the nationwide safety regulation.
The terrorism fees are a bit bizarre, and are apparently tied to police claiming he tried to run them over along with his motorbike. Tong’s attorneys are arguing he didn’t deliberately hit the police, however misplaced management of his bike after being distracted when a police officer swung his protect towards him. Prosecutors have tried to say that Tong rode via police cordons, after which tried to run over three officers who tried to cease him.
Just lately, prosecutors added a harmful driving cost underneath beforehand present visitors legal guidelines, a non-national-security-law offense. Consultants stated this sort of legal cost would have been way more doubtless earlier than the nationwide safety regulation, or maybe may need been coupled with different legal offenses, resembling assault.
Tong has pleaded not responsible to the fees. The total consequence of the trial continues to be unclear, although Tong is unlikely to flee consequence-free.
However even earlier than the decision, Tong’s case reveals how profoundly Hong Kong’s judiciary is straining underneath the nationwide safety regulation, because it shreds the standard protections and rights afforded defendants.
The brand new nationwide safety regulation threatens Hong Kong’s judicial system
Two parts make Tong’s case so troubling: first, his denial of bail, and second, his denial of a trial by jury.
Tong wasn’t alone in being denied bail — dozens and dozens of different defendants charged underneath the regulation have been held in custody for months. Sometimes, defendants have a proper to request bail until prosecutors have a professional motive to retain the accused in custody.
However the nationwide safety regulation units a convoluted bail commonplace, consultants stated. The burden is on the defendant to point out that they won’t proceed to have interaction in any exercise that may endanger nationwide safety.
This can be a robust bar to fulfill, first as a result of what constitutes endangering nationwide safety may be very broad — subversion or “colluding with international powers” are mainly no matter authorities need them to be. And second, as a result of, in lots of circumstances, defendants say they didn’t interact in actions that endangered nationwide safety within the first place. As Flaherty put it, this creates the final word catch-22.
This makes it secure to say, stated Lydia Wong, a analysis fellow on the Middle for Asian Regulation on the Georgetown College Regulation Middle, that bail for nationwide safety defendants is “mainly nonexistent.”
Maybe essentially the most chilling aspect of Tong’s case is the denial of a trial by jury. Consultants instructed me {that a} trial by jury is a cornerstone of Hong Kong’s widespread regulation, and is enshrined in its Primary Regulation. A trial with out one — particularly one the place the defendant probably faces life imprisonment — is unprecedented.
A provision of the nationwide safety regulation permits juries to be scrapped in sure circumstances, and the regulation features a vaguely outlined concern for jurors’ security as justification for doing so. Hong Kong’s Excessive Court docket dominated earlier this yr that convening a jury in Tong’s case might probably put “jurors and their relations in danger.” Tong’s attorneys appealed the ruling, however the ruling stood. As a substitute, a three-judge panel will hear Tong’s case.
That panel isn’t made up of any three judges, both. These justices are designated to particularly deal with nationwide safety circumstances. They’re chosen by Chief Government Carrie Lam, Hong Kong’s chief administrator who additionally occurs to be handpicked by Beijing.
Collectively, it seems to be like a really deliberate effort to restrict scrutiny in these nationwide safety trials, carving out a form of parallel justice system. “The federal government actually desires to decrease transparency for nationwide safety crimes in as some ways as they’ll — I can’t say to manage the end result, however restrict the alternatives of the end result,” stated Eric Lai, a Hong Kong regulation fellow on the Middle for Asian Regulation at Georgetown.
A free and honest jury trial would inject uncertainty into the trial consequence. That isn’t actually the end result the Chinese language authorities desires, as the purpose of introducing such a draconian regulation is to make use of it — to punish those that dissent, and make the stakes so excessive it deters the remainder. The lack of public enter might empower the prosecution, or judges, to behave with none accountability, basically making a sham courtroom system that begins trying much more like China’s.
A jury-less trial is only one strategy to obtain that. The nationwide safety regulation additionally permits for defendants to be tried on the mainland, crumbling completely any semblance of two separate authorized techniques. As some consultants ruefully identified, Tong is fortunate, not less than, to have Hong Kong judges presiding over his case, as China doesn’t actually have a custom of an impartial judiciary to undermine within the first place.
Taken collectively, the nationwide safety regulation represents the “mainlandization” of Hong Kong’s judicial system, stated Fiona de Londras, chair of worldwide authorized research at Birmingham Regulation College.
The basic ideas of the widespread regulation and authorized autonomy of Hong Kong aren’t being chipped away at. “They’re being bludgeoned,” de Londras stated.
The “one nation, two techniques” coverage is over, after which some
Tong isn’t a high-profile pro-democracy determine, somebody who’s lengthy been a frontrunner of the motion, or an outspoken media mogul. Little is thought about him. The extra violent allegations — that he barreled into officers — make his case a bit extra difficult than essentially the most excessive functions of the nationwide safety regulation, like charging lawmakers who participated in election primaries with making an attempt to overthrow the federal government.
Lai, of Georgetown, stated that could be the purpose. Tong’s case is a “strategy to check the water, to check how these new measures underneath the brand new nationwide safety regulation work — with out a robust backfire from the worldwide neighborhood.”
That shouldn’t obscure the very actual unraveling that Tong’s case represents. Extra folks will probably be denied bail; many extra will probably be denied jury trials. Consultants stated they see different areas the place Beijing’s affect and stress is knocking off, one after the other, the form of establishments that make the rule of regulation doable.
For one, consultants stated they’re involved in regards to the bigger independence of Hong Kong’s judiciary, as judges who’ve seem to have dominated in favor of pro-democracy figures in non-national-security-law circumstances typically come underneath assault from the pro-Beijing media.
There are additionally rising considerations about defendants’ proper to counsel, and whether or not these charged can choose their authorized illustration. A nationwide safety case involving Hong Kong activist Andy Li raised questions as to who had appointed his lawyer. The worry is that prosecutors themselves are maybe appointing protection attorneys, an apparent battle of curiosity and one other strategy to restrict the outcomes in any nationwide safety trial.
All of that is commonplace in China’s authorized system — which, once more, is the purpose. Hong Kong’s rule of regulation was one of many final bastions of the “two techniques.” The nationwide safety regulation is intentionally tearing that away. A senior Chinese language official, Zheng Yanxiong, who’s accountable for overseeing the nationwide safety regulation, stated, based on the Guardian, that Hong Kong’s rule of regulation was a “supply of [its] attraction,” however finally, the true objective of the judiciary was to “extremely manifest the nationwide will and nationwide curiosity.”
The imposition of China’s will will not be restricted to the judicial system. The shutdown of Apple Every day, and the arrest of its journalists, is destroying freedom of the press. The concentrating on of teachers and college professors is dismantling freedom of expression. The silencing of the annual Tiananmen Sq. vigil — the one memorial in higher China — is an try and erase dissent.
“Beijing [is] decided to reshape Hong Kong by this unprecedented regulation,” Lai stated.
Tong’s trial is simply one other element of this effort. It exhibits China will apply and implement the nationwide safety regulation to impose its will on the territory. It’s designed to punish anybody who advocates for democracy, and acts as a warning to anybody else who may strive to take action.
And the nationwide safety regulation serves yet another objective — possibly crucial certainly one of all — de Londras, of Birmingham Regulation, stated. It makes “it very clear to the individuals who stay in Hong Kong, who’s accountable for this territory. And it’s not them.”