Hong Kong’s Supreme Court on Tuesday ordered pro – Democratic media mogul Jimmy Lai to stay behind bars as it faced prosecutors in the first legal test of Beijing’s sweeping new national security law.
The landmark case cements the dramatic changes that the Security Act has begun to make in Hong Kong’s semi-autonomous legal traditions as Beijing seeks to remove disagreement in the restless financial hub.
Lai, the 73-year-old owner of the Democratic tabloid Apple Daily, is one of more than 100 activists arrested under the law since its adoption in June, and the most notable person to be placed in custody.
He has been accused of “collaborating with foreign forces” – one of the new security offenses – for allegedly demanding sanctions against Hong Kong and China.
The Security Act is the most pronounced shift in Hong Kong’s relationship with China since it was handed over by the United Kingdom in 1997.
It criminalized a variety of political views and toppled the legal firewall between the two territories.
Written in Beijing and introduced by fiat in June last year, it allows real estate agents to work openly in the city for the first time, and even grant China jurisdiction in some cases.
Tuesday’s verdict was about the bail.
Assumption that bail is granted for non-violent crimes is a hallmark of Hong Kong’s legal system.
But the National Security Act removes the assumption.
Instead, it states that “no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient reason to believe that (they) will not continue to commit acts that endanger national security”.
The court’s error
Lai was arrested in December and released on bail for about a week after a lower court granted him a 10 million HK bail along with a strict list of demands, including house arrest, no interviews and no social media posts.
But he was put back behind bars a few days after the prosecutor tried to challenge these bail.
On Tuesday, a panel of five top judges agreed with the indictment and found that the lower court judge had erred in granting Lai bail.
The Security Act, the judges wrote, “creates such a specific exception to the general rule in favor of granting bail and imports a strict threshold requirement for bail applications”.
Legal analysts are closely following the case for an indication of whether Hong Kong’s judiciary will act – or even may act – as some form of constitutional brake on Beijing’s security law.
The judiciary can only interpret laws, which are usually passed by Hong Kong’s semi – elected legislators.
Under challenges to new legislation, judges balance the wording of a law against common legal traditions and fundamental freedoms such as freedom of expression and the presumption of bail enshrined in the Hong Kong Mini-Constitution and its Bill of Rights.
But the national security legislation was written directly by Beijing and looks set to trump all other legislation in the event of a dispute.
In Hong Kong’s complex constitutional hierarchy, the ultimate judge of the law is the Beijing Standing Committee, which has shown an increased willingness in recent years to wade into legal arguments and make statements.
China’s state media has already pleaded guilty to Lai and made clear authorities expect Hong Kong judges to stand by Beijing on national security.
Senior Chinese officials have recently backed calls to “reform” Hong Kong’s judiciary, something that opponents fear signals support for a more mainland-style justice system that responds to the Communist Party and where convictions are almost guaranteed.