Detained Hong Kong media icon Jimmy Lai was in court on Monday, trying to win bail in the first major legal challenge to a comprehensive national security law introduced by Beijing last year.
Lai, 73, who owns the Democratic tabloid Apple Daily, is one of more than 100 Democrats who were arrested under the new law since it was passed in June and he is the highest-profile figure jailed on charges.
He has been accused of “collaborating with foreign forces” – one of the new national security crimes – for allegedly demanding sanctions against Hong Kong and China in response to ongoing violence against democratic activism.
The Security Act is the most dramatic shift in Hong Kong’s relationship with authoritarian China since the business hub was handed over by Britain in 1997, criminalizing a host of political views and toppling the legal firewall between the two territories.
Written in Beijing and introduced by fiat, it allows mainland security agents to work openly in the city for the first time and gives China jurisdiction in some cases.
Another precedent element in the law is no presumption of bail – a hallmark of Hong Kong’s independent common legal system.
That’s what Lai and his lawyers wanted to challenge on Monday.
Lai was arrested in December and was originally granted bail after agreeing to a strict list of demands, including house arrest and no interviews or social media.
But he was put back behind bars a few days later by the court for a final appeal pending the week’s full hearing.
A panel of top judges will now need to balance the wording of Beijing’s law against the city’s common legal traditions, its mini-constitution and its rights proposal that supposedly guarantees freedom of expression and a presumption of bail for non-violent crimes.
Legal analysts say the results will provide 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.
“Today’s hearing … is probably the single most important and subsequent court hearing in Hong Kong’s history after 1997,” Antony Dapiran, a lawyer and author in Hong Kong, told AFP.
“This will be the first time the Hong Kong Supreme Court has expressed its views on the National Security Act and how it can be expected to fit into Hong Kong’s common legal system and existing human rights protections,” he added.
The judges are in an uncertain position.
In Hong Kong’s complex constitutional hierarchy, the ultimate judge of the law is the Beijing Standing Committee, which has shown a growing willingness in recent years to wade into legal arguments and make statements.
China’s state media has already found Lai guilty and made clear authorities expect Hong Kong judges to stand behind Beijing on national security, meaning that any countermeasure could put the judiciary on a collision course with the central government.