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Previously three years since Beijing imposed a Nationwide Safety Legislation (NSL) on Hong Kong, many analysts and observers fearful that the authorities would proceed to legislate new payments to weaponize legal guidelines and courts to suppress the free and open society of Hong Kong.
These considerations weren’t invalid; the chief government of Hong Kong made it clear that they might full the laws of the native safety invoice by subsequent 12 months. The usage of formal, home authorized guidelines, starting from using the sedition legislation to banning civil society actions that lack an leisure license, has silenced many attempting to talk out their views in public.
Nevertheless, what’s extra worrying is the federal government’s arbitrary use of legal guidelines and powers that transcend formal guidelines. Such authorities behaviors are unavoidably creating extra uncertainties and undermining the integrity of the rule of legislation in Hong Kong.
Maybe probably the most notable instance is Agnes Chow’s self-imposed exile after leaping bail from the Hong Kong authorities. The assertion from Chow, who is among the youngest main pro-democracy figures in Hong Kong and is known in Japan’s public sphere, gives us an perception to clarify my concern above.
Agnes Chow’s Declaration and the Authorities’s Silence
In response to Chow’s assertion on her social media account, she left Hong Kong for Toronto in mid-September for college research. Now, she has determined to not return to Hong Kong in December to report back to the police as her bail circumstances demanded.
In August 2020, Chow and eight different activists have been arrested by nationwide safety police. She was accused of colluding with overseas forces to hazard nationwide safety, a brand new crime below the NSL imposed by Beijing in the identical 12 months. Later, she was launched on police bail and her journey paperwork have been surrendered.
This 12 months, Chow enrolled in a Toronto grasp’s program and bought a conditional supply. To get again her passport, she was requested by the authorities to put in writing a “letter of repentance,” claiming she regretted her previous political involvement and would by no means talk with anybody from the related circle once more. After that, she was requested to journey with Hong Kong’s nationwide safety police to mainland China to go to exhibitions and to put in writing a letter praising the “nice achievements” of the nation.
Writing a “letter of repentance” earlier than prosecution and trial doesn’t accord with the frequent legislation system in Hong Kong. However it’s a apply not unusual in mainland China, the place journalists, activists, and even businesspeople should submit such letters to legislation enforcement to be able to safe launch from custody. Additionally, praising the nation as a situation of releasing journey paperwork has by no means been a norm in Hong Kong’s authorized and judicial system. Nonetheless, it serves as a recognized tactic of mainland authorities to stress focused people, utilizing private liberty and security as leverage.
At present, the Hong Kong authorities have solely condemned Chow’s declaration of leaping her bail. Nonetheless, they’re reluctant to verify whether or not Chow’s statements in regards to the bail circumstances and her visits to mainland China are factual.
Acts With No Authorized Foundation
If Chow’s self-declaration is totally real, then it additional confirms that politics are above the rule of legislation in Hong Kong at the moment. So long as a felony suspect might show patriotism earlier than the police – by praising the regime, chopping ties with enemies of the state, or regardless of the authorities outline – the authorities could possibly be glad and supply a deal of non-public liberty.
Essentially, Chow has not but been charged with nationwide safety crimes and thus has by no means been taken to court docket for a nationwide safety trial up to now three years. There’s actual doubt in regards to the energy of the case in opposition to her. The request for a letter of repentance as a part of the deal for releasing her journey paperwork is, clearly, not a part of the felony process below both native legislation or the NSL. It’s in all probability a political means to stress Chow earlier than any formal proceedings.
This seems inconsistent with the prevailing authorized guidelines below Hong Kong’s felony legislation and the NSL.
Following the Felony Process Ordinance, there are clear guidelines for bail circumstances to make sure the particular person admitted to bail is not going to, for instance, commit an offense whereas on bail or intervene with a witness. There aren’t any guidelines that submitting a letter of repentance earlier than the graduation of trial will be thought-about a bail situation.
Even within the NSL, guidelines for confiscating journey paperwork are supplied. Below the NSL’s implementation guidelines, an applicant who had their passport confiscated below the NSL can petition the police commissioner or a Justice of the Peace to return the passport or allow them to depart Hong Kong. Such a call will be made if the commissioner or Justice of the Peace finds that refusing the applying would trigger unreasonable hardship to the applicant. An applicant might should deposit a sum of cash and enter into recognizance, and should seem at a specified time and place in Hong Kong upon return. Nonetheless, the implementation guidelines haven’t supplied any discretionary powers to the police to impose further circumstances on the applicant.
Ostensibly, becoming a member of cops to go to mainland China and writing letters of repentance are usually not required within the guidelines. Even the NSL doesn’t present powers to cops to impose further circumstances for returning journey paperwork.
One might argue that legislation enforcement might have discretionary powers to implement the Nationwide Safety Legislation successfully. One may say {that a} discount for liberty between the police and an arrestee on police bail isn’t unusual. Nevertheless, if Chow’s assertion is true, the police request for her seems to make the train of police energy in NSL circumstances extra arbitrary and politicized than earlier than, inevitably difficult the frequent legislation system of Hong Kong.
Little question, arbitrary deprivation of liberty for nationwide safety arrestees and defendants is a brand new norm for Hong Kong’s political and authorized order, when lots of them have been affected by pre-trial detention for greater than two years. Now, it seems that whether or not a defendant could possibly be free from police surveillance relies on the extent that they might adjust to police requests, that are extra political than authorized in nature.
Moreover, Hong Kong’s legislation enforcement seems to have the ability to take felony suspects to mainland China of their formal capability. But, mainland China isn’t below the jurisdiction of Hong Kong police. To what extent did mainland legislation enforcement support them? Was the journey handled as a personal go to, which ought to by no means be learn as finishing up police duties? If Chow’s declare is correct, it’s a disturbing instance of the jurisdictional boundary between Hong Kong and mainland China being additional blurred.
A Chill to the Enterprise Sector
For a lot of overseas buyers, the underlying motive for trusting Hong Kong’s “one nation, two programs” components is that their funding could possibly be safeguarded by the requirements of the frequent legislation in Hong Kong, together with the unbiased court docket, authorized certainty, and the absence of arbitrariness in legislation enforcement. These components essentially differ from town’s sovereign state, the place legal guidelines and courts are topic to the Chinese language Communist Social gathering.
Regardless that Hong Kong now has a Committee for Safeguarding Nationwide Safety, whose selections are usually not topic to authorized assessment and will, in idea, overrule the courts, the Hong Kong authorities has repeatedly claimed to enterprise teams that town’s frequent legislation and justice system stay sturdy and neutral, supporting a good and pleasant enterprise surroundings.
That stated, Chow’s assertion inevitably sends a message to world buyers that Hong Kong’s enforcement of legal guidelines and political powers are extra arbitrary than earlier than, because the authorities now think about acts of patriotism as a prime trigger for gaining freedom of motion and property. Overseas buyers wouldn’t be desperate to obtain related remedy from each Chinese language and Hong Kong legislation enforcement when doing enterprise within the territory. Nevertheless such a convergence appears to be coming true.
Maybe the Hong Kong authorities meant to launch Chow and let her inform the world of her expertise of surveillance, in addition to the police’s request for her to specific repentance and patriotism. This would possibly create one other type of chilling impact for Hong Kongers within the territory: expressing the love of the nation, and finally, the party-state will quickly be a prerequisite for having fun with freedom and liberty, whereas the which means of “loving the nation” might solely be determined by the state.
Little question, given the scant accountability the native police face below the NSL, this complete charade – arrest, seizure of journey paperwork for indeterminate durations, imposition of arbitrary circumstances – might befall anybody in Hong Kong now.
Transparency is paramount to saving Hong Kong’s picture of upholding the rule of legislation, except it’s merely a façade or slogan. The federal government ought to clarify publicly whether or not Chow’s claims are correct and, if that’s the case, what was the authorized foundation of constructing such requests on Chow.
If the authorities proceed to make use of the Nationwide Safety Legislation as a protect to cowl their arbitrary apply of legal guidelines and powers from the general public, their credibility wouldn’t be enhanced. As an alternative, each the general public’s and world enterprise’s confidence might solely deteriorate additional, as they could discover Hong Kong’s authorized surroundings is not certain and constant, similar to town’s motherland.
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