‘They can’t speak freely’: Hong Kong a year after the national security law

Powerful chilling effect as dissenters are detained, often without charges, and face life in prison

One year after Beijing imposed a national security law (NSL) on Hong Kong, the city has been drastically and fundamentally changed. Political opposition has been largely crushed, pro-democracy newspapers have been forced to close or self-censor, political and advocacy groups have disbanded. Thousands of residents have fled overseas.

At least 128 people have been arrested under the NSL or by its dedicated police department, including three minors, dozens of politicians, and journalists. More than half have been charged with national security offences that carry up to life in prison, and only 17 were granted bail.

But with the first case reaching trial just last week, the law – which broadly outlaws acts of secession, subversion, foreign collusion and terrorism – remains untested. Analysts say the rushed arrests and slow prosecutions are a deliberate strategy designed to stoke fear, and that interventions in due process risk the right to a fair trial.

The Guardian has tracked the use of the NSL since its introduction. Relying on police press statements, social media posts and news reports, it determined that at least 128 people have been arrested, some of them multiple times, by the police’s national security department (NSD).

Hong Kong police and the national security bureau gave different figures – 113 and 115 respectively – while the department of justice said it “does not maintain any record of the statistical information”.

The bureau said 64 people had been charged, but that the others remain under investigation. The low rate of charges so long after arrest is deliberate, said Eric Lai, the Hong Kong law fellow at Georgetown University and a co-author of two recent reports by the Georgetown Center for Asian Law examining the NSL.

“It’s totally in their control whether and when they will prosecute the arrestee under police bail,” said Lai. “[Not doing so] creates a silencing effect in society, an idea that everyone could be arbitrarily arrested, even without charges, and so they can’t speak freely and participate in political society.”

Jeffrey Wasserstrom, a historian of modern China at the University of California, Irvine, and an author on Hong Kong, said authorities already had the ability to “arrest, detain and prosecute people for many actions that displeased them,” but that the NSL had added the fear of long sentences and provided greater potential to punish people for speech. “This has a powerful chilling effect,” he said.

Few people in Hong Kong are still willing to speak publicly in opposition to the government, and interviews with foreign media have been cited in at least one case (against Jimmy Lai) and two bail hearings (against the former legislator Claudia Mo).

High-profile activists such as Jimmy Lai and Joshua Wong are among those awaiting national security trials. But there are others, like Margaret Ng, Martin Lee, Lee Cheuk Yan and Albert Ho, who have been charged or convicted under pre-existing laws covering unauthorised protests, anti-pandemic gathering bans and the colonial-era sedition law.

Among the cases tracked by the Guardian, dozens of people arrested by the NSD – which has vastly expanded powers – were charged with fraud, money laundering, non NSL-sedition and other crimes unrelated to the new law, blurring the line between common law and national security.

An Amnesty International report released on Wednesday said: “The authorities are exercising these virtually unchecked investigative powers in cases potentially unrelated to national security.”

This risked normalising the NSD operating outside its scope (which gives some immunity from human rights laws), and limited what could be done to prevent “potential human rights violations during the investigative process,” Amnesty said.

‘Dual-track justice’: concerns for due process

Members of the judiciary have expressed fear for the future of Hong Kong’s respected court system. At least two judges have left, citing the NSL.

The Georgetown report found significant concerns that defendants’ rights to due process were being curtailed in NSL prosecutions.

The first NSL trial began on 23 June, 51 weeks after the defendant, Tong Ying-kit, was arrested on day one of the law, after he allegedly drove his motorcycle into a group of police officers during protests.

Tong’s plea for trial by jury was turned down by the high court – for the first time in its 176 year history – after Hong Kong’s justice secretary argued that juror safety could be at risk.

Lai said his team were “deeply concerned about due process”, citing the jury decision, the presumptive denial of bail to national security defendants – including dozens of people arrested for holding a peaceful pre-election primary – and questions as to whether some defendants were pressured into dismissing their chosen counsel and engaging pro-Beijing lawyers.

“We can see the government, the prosecution, even the judge is trying to endorse a dual-track justice system in Hong Kong,” he said. “One that follows the ordinary practices and the other that creates a new norm.”

The Georgetown report said it was too early to say definitively, but “taken together, the moves by the government … put the fundamental right to a fair trial at risk”.

Tong is on trial for the crimes of inciting secession and terrorism, as well as dangerous driving, but his case also has a free-speech element. Prosecutors said a flag mounted on his motorbike that read “Liberate Hong Kong, revolution of our times” was a separatist rallying cry from people seeking “regime change”.

According to an analysis of the Georgetown Center’s and the Guardian’s data, about 30 of the NSL arrests appeared to relate to seditious or secessionist speech or possession of materials. Most involved no other alleged crimes. Most of the 53 people arrested over the pan-democrat primaries had no other accusations against them.

In the last year, political opposition has all but disappeared. Pan-democrat legislators have resigned or been disqualified; dozens of them have been arrested. Activists have been jailed, gone to ground or fled overseas alongside untold thousands of other residents. Political parties and advocacy groups have disbanded, church charities shuttered, academia upended. The city’s most vocal pro-democracy newspaper, Apple Daily, has been forced to close and other media intimidated or muzzled. Fundamental changes to elections have sailed through.

Lai and his co-authors said there was still opportunity for the government to “de-escalate” its use of the NSL, and he maintained this was in its interest – if it wanted to remain an international finance centre and model city that respected human rights and the rule of law.

It may be too late. In a report last week, Human Rights Watch accused the Hong Kong government of having “systematically dismantled human rights” with the NSL.

“Hong Kong people are watching the Chinese government take rapid-fire steps to destroy their democratic society,” said Maya Wang, the senior China researcher at Human Rights Watch. “They used to talk about politics, run for office and criticise the government, but that’s not just off limits now, it’s punishable by up to life in prison.”


Helen Davidson in Taipei

The GuardianTramp

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