Tong Ying-kit was arrested a yr in the past, accused of driving a bike into a bunch of policemen, a flag trailing behind him that learn: “Liberate Hong Kong, revolution of our instances.”
His trial, which started final week, marks a milestone for Hong Kong: Tong is the primary particular person charged below its nationwide safety regulation.
The Beijing-imposed laws went into impact a yr in the past. It’s obscure, it’s broad, and it targets crimes corresponding to secession, subversion, colluding with overseas 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 below 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 remodeled Hong Kong in only one yr. It has chilled Hong Kong’s pro-democracy motion. Nevertheless it has additionally radically — and swiftly — disrupted the territory’s lengthy custom of an unbiased 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, nevertheless it is not going to be an outlier.
“It’s the software of a regulation,” mentioned 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 known as “one nation, two methods,” which established that Hong Kong would preserve separate financial and political methods from mainland China for 50 years, by way of at the very least 2047. That features Hong Kong’s storied custom of widespread regulation, an unbiased judiciary, and protections for sure freedoms like speech, meeting, and the press, that are preserved in Hong Kong’s Fundamental Regulation, a sort of mini-constitution.
The date of the handover has historically been one in all 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 in opposition to the Hong Kong authorities over a controversial extradition invoice grew into a bigger pro-democracy motion. The Chinese language authorities began to lose persistence 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 who had signs and flags calling for Hong Kong’s independence.
Tong Ying-kit was amongst them. Reportedly a 24-year-old cook dinner at a ramen restaurant, Tong faces two counts below 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 below the nationwide safety regulation.
The terrorism costs are a bit bizarre, and are apparently tied to police claiming he tried to run them over together with his motorbike. Tong’s legal professionals are arguing he didn’t deliberately hit the police, however misplaced management of his bike after being distracted when a police officer swung his defend towards him. Prosecutors have tried to say that Tong rode by way of police cordons, after which tried to run over three officers who tried to cease him.
Just lately, prosecutors added a harmful driving cost below beforehand present visitors legal guidelines, a non-national-security-law offense. Specialists mentioned such a legal cost would have been way more doubtless earlier than the nationwide safety regulation, or maybe might need been coupled with different legal offenses, corresponding to assault.
Tong has pleaded not responsible to the fees. The complete consequence of the trial remains 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 below the nationwide safety regulation, because it shreds the everyday 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 below the regulation have been held in custody for months. Usually, defendants have a proper to request bail except prosecutors have a reliable cause to retain the accused in custody.
However the nationwide safety regulation units a convoluted bail normal, specialists mentioned. The burden is on the defendant to indicate that they won’t proceed to have interaction in any exercise that can endanger nationwide safety.
This can be a powerful bar to fulfill, first as a result of what constitutes endangering nationwide safety could be very broad — subversion or “colluding with overseas powers” are principally no matter authorities need them to be. And second, as a result of, in lots of instances, defendants say they didn’t interact in actions that endangered nationwide safety within the first place. As Flaherty put it, this creates the last word catch-22.
This makes it protected to say, mentioned Lydia Wong, a analysis fellow on the Heart for Asian Regulation on the Georgetown College Regulation Heart, that bail for nationwide safety defendants is “principally nonexistent.”
Maybe essentially the most chilling ingredient of Tong’s case is the denial of a trial by jury. Specialists instructed me {that a} trial by jury is a cornerstone of Hong Kong’s widespread regulation, and is enshrined in its Fundamental 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 instances, 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 may probably put “jurors and their members of the family in danger.” Tong’s legal professionals appealed the ruling, however the ruling stood. As an alternative, 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 instances. They’re chosen by Chief Government Carrie Lam, Hong Kong’s chief administrator who additionally occurs to be handpicked by Beijing.
Collectively, it appears to be like like a really deliberate effort to restrict scrutiny in these nationwide safety trials, carving out a sort of parallel justice system. “The federal government actually desires to decrease transparency for nationwide safety crimes in as some ways as they will — I cannot say to manage the end result, however restrict the alternatives of the end result,” mentioned Eric Lai, a Hong Kong regulation fellow on the Heart for Asian Regulation at Georgetown.
A free and truthful 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 may empower the prosecution, or judges, to behave with none accountability, primarily making a sham court docket system that begins trying much more like China’s.
A jury-less trial is only one option 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 methods. As some specialists ruefully identified, Tong is fortunate, at the very least, to have Hong Kong judges presiding over his case, as China doesn’t also have a custom of an unbiased judiciary to undermine within the first place.
Taken collectively, the nationwide safety regulation represents the “mainlandization” of Hong Kong’s judicial system, mentioned Fiona de Londras, chair of world 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 mentioned.
The “one nation, two methods” 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 just a little extra difficult than essentially the most excessive functions of the nationwide safety regulation, like charging lawmakers who participated in election primaries with trying to overthrow the federal government.
Lai, of Georgetown, mentioned which may be the purpose. Tong’s case is a “option to check the water, to check how these new measures below the brand new nationwide safety regulation work — with out a sturdy backfire from the worldwide neighborhood.”
That shouldn’t obscure the very actual unraveling that Tong’s case represents. Extra folks might be denied bail; many extra might be denied jury trials. Specialists mentioned they see different areas the place Beijing’s affect and stress is knocking off, one after the other, the sort of establishments that make the rule of regulation potential.
For one, specialists mentioned they’re involved concerning 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 instances typically come below 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 legal professional. The concern is that prosecutors themselves are maybe appointing protection attorneys, an apparent battle of curiosity and one other option 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 methods.” 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, mentioned, in line with the Guardian, that Hong Kong’s rule of regulation was a “supply of [its] appeal,” however finally, the actual aim of the judiciary was to “extremely manifest the nationwide will and nationwide curiosity.”
The imposition of China’s will isn’t restricted to the judicial system. The shutdown of Apple Day by day, and the arrest of its journalists, is destroying freedom of the press. The concentrating on of lecturers and college professors is dismantling freedom of expression. The silencing of the annual Tiananmen Sq. vigil — the one memorial in larger China — is an try to erase dissent.
“Beijing [is] decided to reshape Hong Kong by this unprecedented regulation,” Lai mentioned.
Tong’s trial is simply one other part 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 attempt to take action.
And the nationwide safety regulation serves another aim — perhaps crucial one in all all — de Londras, of Birmingham Regulation, mentioned. It makes “it very clear to the individuals who reside in Hong Kong, who’s accountable for this territory. And it’s not them.”