Not for the first time, we find ourselves wondering if the Rule of Law is being abused by our rulers, much though they claim to cherish it
Consider the case of the 47 suspects charged last week with offences against the national security law. I have nothing to say about the merits of the charges against them. Such chat would be unlawful, though that has not stopped sundry mainland officials, academics and journalists from wading in.
One of my colleagues tried asking the Department of Justice to comment on this orgy of prejudicial comment. I have tried this before and expected an evasive non-answer, which is what she got.
But what of the actual procedure? The usual arrangement, if you are a respectable member of society accused of a criminal offence, is that you are told the trial date and you turn up. If your lawyer thinks you might be remanded in custody you bring a toothbrush.
The 47 were all arrested on the Sunday and held in custody pending an appearance before a magistrate on Monday. They were then all piled into the same court, with predictable results. The proceedings were interminable. Four of the defendants had to be taken to hospital. At the end of the second day the magistrate adjourned the proceedings at 10.30 pm saying that some of the defendants looked “tired”.
As the previous day’s hearing had lasted into the small hours of the morning this was not surprising. By the time the defendants had been booked back into the Lai Chi Kok Reception Centre some of them only had two hours to sleep.
By the third day some of the defendants had not had a bath or a change of clothes since Sunday.
Personally I found it difficult to believe that this was the normal arrangement. I do not remember anything like this happening before. But of course I am not a lawyer. What do I know about such things?
However I do, for some mysterious reason, feature on the mailing list of one of Hong Kong’s better known law firms and a senior partner therein occasionally writes a sort of blog there. Some of the content is personal, some of it comments in a fairly neutral way on current events, some of it is about legal matters.
Now I do not know why I get this. I do not know if the author knows who I am or what I do, and I do not know if he intends it for further publication by anyone who finds his opinions interesting. So I shall not name the firm or the writer, except to say that as he is a (or should that be the?) senior partner, he is presumably not some young radical fresh from the teargas-sodden barricades.
His view of the events outlined above goes like this: “I cannot recall a situation such as this in my four decades as a legal professional in Hong Kong. We have long-established protocols and processes in place. In cases involving scores of defendants, it is usual for bail hearings and the like to be done in batches to avoid drawn-out proceedings. It is reasonable to expect charges to be laid once investigations are almost complete, not at an immature stage. Defendants are entitled to presumption of innocence and should be treated thus. I confess to having serious concerns about what is happening in this case.”
I infer that the arrangement is unusual. This leaves us with three possibilities, all equally unpalatable. The first is that the person in charge of prosecution arrangements in the Department of Justice (sic) is dumb and did not realise what would happen as a result of his actions.
The second is that the person concerned, thinking that the magistrate would spread the proceedings over a week or two, thought this would be a good way of gratifying his puppet-masters by demonstrating the Hong Kong government’s ability and willingness to contrive stays in jail for purportedly innocent purveyors of inconvenient opinions.
The third is that said person knew exactly what he was doing and eagerly seized the chance to arrange some cruel and unusual punishment for opponents of the official line.
The upshot of the proceedings was that 15 of those accused were granted bail, to which the Department of Justice immediately objected. The remaining 32 were not. Those who were supposed to get bail were remanded in custody with everyone else. The DoJ later withdrew its objection to bail for four defendants, who are now free.
There is an interesting question of interpretation here. The National Security Law says (in the now notorious Article 42) that “No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.”
Much amusement was occasioned in legal circles by the CFA’s strenuous efforts to pretend that this did not mean the defendant was presumed to be guilty.
But still. It presumably means the defendant will not continue to commit the acts of which he is accused. It would be intolerably broad and flagrantly contrary to any concept of justice if the magistrate was required to decide if the person in the dock was the sort of person who might in some circumstances infringe the NSL in some unspecified way.
Now the case against the 47 defendants is that they participated in the “primary election” exercise which was supposed to choose pro-democratic candidates for the 2020 Legco election.
The election has now been postponed for a year. Plausible rumours suggest that it will be postponed for a further year while measures are wheeled into place to ensure that there is a secure majority for the Xi fan club. Clearly there is no question of the defendants organising another primary in the near future, if ever.
So however subversive their conduct may have been it appears that there is no likelihood, and indeed no opportunity, for them to repeat it before their trials. So why keep them in custody? All the possible answers to this are probably a violation of the NSL.
Be that as it may, the unintended consequence of all this is to remove the stigma which used to attach to being in custody. Henry Thoreau said “In an unjust society the only place for a just man is in prison.”
We’re getting there.
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