Read on Twitter
In light of the sentencing of the Demosisto Three, I thought I would live-tweet a very urgent discussion: @usasiainstitute's event on Hong Kong's criminal justice system post-National Security Law with @HKULaw's brilliant Professor Simon Young.
Young: I wanted to look at the modern criminal justice system. In 91, HK received its Bill of Rights - the beginning of constitutional rights protection. Then in 97, addition rights in the Basic Law. Influential in the development of criminal justice. A "due process" model.
Courts have strong power of constitutional review, can and have struck down criminal provisions.
Heavy dose of "common sense". Lots of proportionality and restriction to rights claims.
Also lots of foreign influence. Citing of foreign judgments, ECtHR, CFA foreign judges.
Heavy dose of "common sense". Lots of proportionality and restriction to rights claims.
Also lots of foreign influence. Citing of foreign judgments, ECtHR, CFA foreign judges.
When it comes to criminal justice reform, HK has been unsuccessful in this area. Very little criminal justice reform. Govt has been hesitant to put forward controversial legislation generally. Little constructive development and improvement of the law (e.g. criminal hearsay).
So we have thrust upon us this shocking National Security Law.
After so little reform. No consultation. No input. Don't see draft of text. Immediately imposed on us.
Shock and awe given the previous inability to reform our laws. Created and enacted in short time.
After so little reform. No consultation. No input. Don't see draft of text. Immediately imposed on us.
Shock and awe given the previous inability to reform our laws. Created and enacted in short time.
When one looks at NSL: this was not a direct copy and paste of Chinese law. There was attention to "tailor" it to HK, there is actually mens rea in the offenses, its more detailed and customized.
5 challenges to criminal justice from NSL:
1) Challenge of interpretation
Never has criminal law been imposed on HK from NPCSC thru Art 18 (previously about garrison law, nationality, law of sea). NPCSC has power of final interpretation.
1) Challenge of interpretation
Never has criminal law been imposed on HK from NPCSC thru Art 18 (previously about garrison law, nationality, law of sea). NPCSC has power of final interpretation.
Tong Ying Kit case: First NSL case, Court of first instance said that they will talk into account common law principles and human rights - same as any other criminal law case. But hanging over heads is NPCSC ability to come in with power of final interpretation.
@jeromeacohen: can you say something about the large number of cases that have been put forward pre-NSL. Have they been affected (discretion, procedures, systems) after NSL? Whole HK legal system is under challenge.
Prof Young: This is big questions. Biggest impact is emboldening police and prosecutors. Starting to see charges under old English colonial sedition laws. One wouldn't really see that pre-NSL. Going deep into the toolkit.
There will be a question coming up soon whether old English sedition law requires a designated judge.
All these questions about whether the new NSL framework will be aligned with the old colonial national security legislation. Imagine that Beijing intended it this way.
All these questions about whether the new NSL framework will be aligned with the old colonial national security legislation. Imagine that Beijing intended it this way.
We wrote a SCMP article with respect to prosecutors. Need to take a strong stand on whether or not to go forward with prosecution in the public interest. Need to show mercy with young people generally. Unfortunately, we haven't seen much of that. Mainly a hardball approach.
However, we have been seeing a lot of acquittals, particularly on lack of sufficient evidence. Its not easy to actually prove these cases beyond a reasonable doubt.
@jeromeacohen: want to follow up on the prosecution question. Has the suggestion of the bar association that prosecutor also exercise discretion in public interest been making any impact in office of public prosecution?
Who is controlling the decision within the department of justice? Is it Secretary of Justice? DPP? Someone higher? What do we know about who controls now there is a new National Security Unit within prosecutor office - any light you can cast on this?
Young: Not a lot of transparency. It is very unfortunate. David Leung is leaving the office, no announcement of who is taking over. We don't even know who is heading the special National Security Unit(!!). This is not a new issue, but know that SOJ can make these decisions.
Spat between DPP and SOJ imply there is difference in view on these issues. But we simply don't know.
@jeromeacohen: Could you say something about the efforts of the DPP to try and get judge vetting (from NSL) into pre-NSL cases?
Young: My initial reaction was, of course [it should not apply]. But upon reading the law closely, it is written in a certain way.
Young: My initial reaction was, of course [it should not apply]. But upon reading the law closely, it is written in a certain way.
"Offenses endangering national security" vs. "under this law". There is on the face, a difference. There is an argument for the government to make here.
@jeromeacohen: This is particularly hard for the public to grasp. Another example of the reach of this new NSL. What about the attack on judges? The assurance has always been given by pro-Beijing camp that we will always have independent judges in HK. But NSL creates restriction
And in the media, very strong serious of attacks (from many of the same people!) that judges need to be reformed - starting with public condemnation. They don't like these acquittals, light sentences, some decision on bail. Proposals for reforming judiciary, restrict discretion.
Young: These developments are relatively new. Of course the judiciary cannot respond directly to these comments. It's typically up to Secretary of Justice to defend the law, judiciary. Critique that she is not doing enough. Suggestions she should use contempt provisions even.
Chief Justice has been trying to do almost a public education function about the principles underlying the criminal justice and court system.
@jeromeacohen: What is in the future here? Deputy director HKMAO has called for unspecified judicial reforms. Is there prospect that judges could be ousted for political reasons? There has been some transfer of judges. Suggested recruitment criteria should include loyalty, etc.
Young: Design of our system helps insulate judges from executive influence. Chief justice plays big role for recommendation of judicial officers. On disqualification question - new standing committee decision on disqualification of LegCo members.
4 new grounds that threaten basic law identified in that NPCSC decision. Carrie Lam said this would be codified in law. Some concern around whether they will apply to judges as well, but nothing concrete on that.
@jeromeacohen: what about the question about NSL extraterritorial prosecution, e.g. Samuel Chu on grounds of lobbying foreign governments? Why would Art 38 try and control even what you and I are trying to say today?
Young: On Mainland exercising jurisdiction - its the Central government that makes the decision. Exceptional cases contemplated (complexity, risk to national security).
They'll probably be monitoring how HK authorities respond. We would hope that if it is invoked, there is full transparency. We hope that they won't resort to abduction. [Geez, we are having low standards of expectation now T_T]
On Art 38 and controlling behaviour control outside of China, @jeromeacohen has said that this is perhaps a clear intention to intimidate the world from talking about HK.
Young: There is no double criminality requirement in this NSL, perhaps assumption is that every country has a national security law. Maybe that is thinking.
In response to question about assurance of due process after Mainland extradition, Young says there is the ability to bring an action in HK that their rights are being violated. Also points to the ability of the media to be right on top of these cases.
Of course, this could all be nothing. Mainland authorities may do what they normally do. But there are interesting factors to consider.
