Hong Kong: 47 Lawmakers, Activists Face Unfair Trial

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On January 6, 2021, Hong Kong police arrested 53 pro-democracy politicians for “subversion” because they had organized or participated in an unofficial public opinion poll in July 2020 to coordinate pro-democracy candidates for the then-upcoming LegCo elections. 
(c) 2021 Lam Chun-tung/Initium 

(New York) – Hong Kong authorities should immediately drop the politically motivated charges and release 47 prominent elected legislators and activists charged under the abusive National Security Law, Human Rights Watch said today. Following the lifting of a media ban on August 18, 2022, it became public that the prosecution had named five of the defendants as “major organizers,” which suggests possible harsh sentences, up to life in prison.

The lawmakers, protest leaders, unionists, and academics, who range in age from 24 to 66, are being prosecuted for “conspiracy to commit subversion” due to their peaceful political activities. The five named as major organizers are Benny Tai, a legal scholar; Au Nok-hin, a former legislator; Chiu Ka-yin and Chung Kam-lun, former district council members; and Gordon Ng Ching-hang, an activist. Many aspects of the detention and trial proceedings have violated international due process standards.

“Hong Kong’s biggest national security case is wrapped in legal language, but it’s just part of the Chinese government’s relentless efforts to smother Hong Kong’s democracy movement,” said Maya Wang, senior China researcher at Human Rights Watch. “The very real threat of life in prison for peaceful activism shows Beijing’s utter contempt for both democratic political processes and the rule of law.”

Under article 22 of the National Security Law, “a principal offender” faces a sentence of between 10 years and life in prison. It is unclear whether the court will treat those designated as major organizers as principal offenders. Those who “actively participate” face between 3 and 10 years, while “other participants” face less than 3 years or “short-term detention or restriction.”

On August 18, a Hong Kong magistrate lifted restrictions on the media for reporting on the pre-trial proceedings of this case, two weeks after the High Court ruled in favor of a defendant in another security law case who contended that the magistrate’s refusal to lift the media ban was unlawful.

News outlets reported after the ban was lifted that 29 defendants had indicated their intention to plead guilty to charges of “conspiracy to commit subversion.” In Hong Kong, a guilty plea generally results in a one-third sentence reduction.

The 47 defendants helped organize or ran as candidates in a July 2020 informal public opinion poll to coordinate pro-democracy candidates for a legislative election, then scheduled for September 2020. They sought to win over half of the legislative seats, with a view toward pressing the Beijing and Hong Kong governments to give universal suffrage to Hong Kong people, as long promised.

The prosecution’s 139-page summary of facts focuses on the writing, speeches, fundraising activities, and coordination among the 47 defendants during this process, which it says aimed to “paralyze the operations of the Hong Kong government.” It accuses Tai, for example, of writing an article that “aimed to trigger a bloody crackdown, leading the West to sanction the Chinese Communist Party,” and says that “through damaging the operations of the legislature, [Tai] planned to subvert state power and overthrow the government.”

Subversion and other crimes established by the National Security Law, which the Chinese government imposed on June 30, 2020, are overly broad and arbitrarily applied, Human Rights Watch said. They include the peaceful exercise of human rights that are enshrined in Hong Kong’s de facto constitution, the Basic Law. These rights are also protected under the International Covenant on Civil and Political Rights (ICCPR), which is incorporated into Hong Kong’s legal framework via the Basic Law and expressed in the Bill of Rights Ordinance.

On August 16, Justice Secretary Paul Lam ordered a non-jury trial in the case, a departure from the tradition of trial by jury for criminal cases heard by the Hong Kong Court of First Instance.

Denial of a jury trial is among several security law provisions that deprive defendants of their fair trial rights. The law establishes a separate channel for those suspected of national security crimes for investigation, prosecution, and trial. It provides for a special police unit to investigate and handle political crimes and for a special team of prosecutors and judges handpicked by the justice secretary and chief executive, the latter in turn handpicked by Beijing. In the case of the 47, the chief executive appointed three judges who will preside over the case. Under the security law, defendants can also be deprived of a public trial if state secrets would be disclosed.

The security law also denies bail to suspects unless the judge is convinced they will not commit national security offenses. Many of the 47 defendants have been detained for nearly 18 months since police charged them in late February 2021. The law’s presumption against bail regardless of the seriousness and nature of the alleged offenses is inconsistent with the presumption in favor of bail and presumption of innocence in Hong Kong’s common law tradition and under the ICCPR.

A Hong Kong barrister previously on the defense team for the case expressed concern that prolonged detention might cause some defendants to “lose their will to defend the charges” and “plead guilty at the first opportunity.”

The pretrial proceedings in the case began on March 1, 2021, and the next hearing will take place on September 1. Hong Kong authorities have repeatedly denied consular access as required by international law to Gordon Ng Ching-hang, an Australian citizen, during his lengthy pretrial detention, media have reported.

The National Security Law is central to Beijing’s most aggressive assault on Hong Kong people’s freedoms since the transfer of sovereignty in 1997, Human Rights Watch said. Since its imposition, basic civil and political rights long protected in Hong Kong – including freedom of expression, association, and peaceful assembly – have rapidly been erased. The authorities have arrested nearly 200 people under the law and prosecuted more than 110 of them. Ma Chun-man, an activist who was the first person sentenced under the law, received five years in prison for “inciting secession.”

Concerned governments should impose coordinated targeted sanctions on officials responsible for violating the rights of people in Hong Kong, as the United States began doing in July 2020, Human Rights Watch said.

Although the United Kingdom, the European Union, and Australia have expressed concerns about the charges brought against the 47 defendants, and now have new human rights sanctions regimes, they have not imposed targeted sanctions on Hong Kong officials responsible for rights violations. In May, more than 100 members of Parliament and peers in the UK issued a joint letter urging the UK foreign secretary to draw up a list of officials linked to human rights violations in Hong Kong.

“Concerned governments should demonstrate their commitment to democracy and human rights by sanctioning officials who trample Hong Kong people’s fundamental rights,” Wang said. “International actions will provide solace to those who have already sacrificed a great deal by simply doing what is right.”

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