Pro-democracy activist Jimmy Lai has been sentenced to 13 months in prison by a Hong Kong Court for his role in banned Tiananmen Square vigils last year. He is already serving a prison sentence of 20 months for his participation in unauthorized assemblies during the anti-extradition movement of 2019 and this sentence will not extend his time behind bars.
Thousands of people in Hong Kong defied the police ban in the year 2020 to hold a candlelight vigil to mark the annual anniversary of Tiananmen crackdown. Democracy advocates argue that the authorities deliberately used the pandemic restrictions to curb the right to assembly.
Lai who is also the founder of now-defunct pro-democracy newspaper, Apple Daily, is one of the prominent targets in government’s effort to curb free speech, dissent and implement the National Security Law (NSL), which has been crafted by Beijing without any consultation with Hong Kong.
The Chinese government enacted the NSL following mass protests and social unrest in 2019, spurred on by the fact that there was no real prospect in sight that the Hong Kong government would be able to enact it on its own as required by the Article 23 of the Basic Law. The NSL designated four national-security offences- “secession, subversion, terrorist activities and collusion with a foreign country or with external elements to endanger national security” and laid out severe punishments for anyone found to have violated them.
The decision by Hong Kong police to invoke pandemic related social distancing restrictions as a pretext to refuse permission for public marches or rallies raises a lot of question because on one hand the authorities maintained its 4-person cap on public gatherings due to COVID, but on the other they relaxed social distancing rules for bars, restaurants and indoor banquets. Police rejected over 30% of public assembly applications in 2020, in contrast to nearly zero in the past, impacting the right to freedom of assembly and procession. The government banned the annual 1 July march for the first time in 2020, citing COVID-19. Moreover, the annual 4 June vigil to commemorate the Tiananmen Square crackdown was banned for the second time in a row, despite weeks of no local COVID-19 cases. The chilling effect of the NSL has been widely felt.
Relevance of the basic structure doctrine to the constitutionality of NSL
The Basic Law was created in 1997 when Britain transferred the sovereignty over Hong Kong to China under the “one country, two system” principle. The Basic Law guarantees some basic democratic and fundamental rights for Hong Kong that are banned in mainland China.
The Basic Law is a foundational national law enacted by the National People’s Congress (NPC) and ordinary national laws such as NSL which are not even applicable to Hong Kong unless they are added to Annex III of the Basic Law, should not override the Basic Law. That’s why the Hong Kong courts should test the constitutionality of the NSL in a suitable case to preserve the sanctity of the Basic Law.
The courts can invoke the basic structure doctrine to declare unconstitutional the relevant parts of the NSL. This doctrine implies that certain aspects or provisions of a constitution are so fundamental that they cannot be amended even by a constitutional amendment, legislation or interpretation. The relevance of the doctrine lies in the fact that even if the NPC has the power to amend the Basic Law, such a power does not extend to changing its basic structure. Also, this doctrine is embedded in Article 159 (4) of the Basic Law and it clearly states that there should be no change in the “established basic policies of the Chinese government regarding Hong Kong.” These basic policies are enlisted in paragraph 3 of the Sino-British Joint Declaration and thus incorporated in various provisions of the Basic Law. “Upholding national unity and territorial integrity” is one such basic policy stipulated in paragraph 3 and the NSL could be justified as implementing this policy. But then paragraph 3 of the Joint Declaration also provides among other things that “Right and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law.” As we know, the NSL has deteriorated many of these rights. It also infringes upon Hong Kong’s high degree of autonomy and independence of judiciary. The NSL in a sense amends the basic structure of the Basic Law and is thus incompatible with Article 159 (4) of the Basic Law.
Since, the NSL is clearly contravening the basic structure of the Basic Law, Hong Kong should have the competence to declare it unconstitutional. But it is highly unlikely that they would exercise this power in practice to avoid any confrontation with the Chinese Government.
Even the Hong Kong courts in some cases gives undue deference to the decisions of the executive and legislature and have shown over-deference to the Standing Committee of the National People’s Congress (NPCSC). This trend can be seen in relation to the NSL as well. The Court of Appeals decision in the Tong Ying Kit case is an example of this over-deference because it is problematic to conclude that “there can be no inconsistency between the NSL and the Basic Law” just because the NSL states that “it is enacted in accordance with the Constitution of China and the Basic Law.” What this conclusion implies is that there would be no need for a judicial review if a legislature declares that the given law is constitutional.
Narrow interpretation of the NSL provisions
If the Hong Kong courts are reluctant to declare unconstitutional the NSL or even a provision of it, then as an alternative they can at least consider the NSL a law of “doubtful constitutionality” and draw narrow interpretation of its provisions that are in consonance with the Basic Law as well as other international human rights law applicable to Hong Kong. Since the NSL is likely to remain an integral part of Hong Kong’s legal system in the foreseeable future, the courts should make full use of Articles 4 and 5 of the NSL, which are part of its General Principles, to narrowly interpret the vague and wide provisions of the NSL to preserve human rights.
But the courts so far have not been up to the task in interpreting the NSL narrowly. Courts have showed reluctance in safeguarding the right to bail in cases decided so far. Article 42(2) of the NSL provides that “no bail shall be granted to a criminal suspect or defendant will not continue to commit acts endangering national security.” This provision seeks to reverse the general presumption of bail. However, if the judge has sufficient grounds for holding a belief that the defendant “will not continue to commit acts endangering national security,” then bail may still be granted.
Hong Kong courts got an opportunity to interpret this provision in Jimmy Lai’s case. He was denied bail by the magistrate. However, the Court of First Instance, on appeal, granted him bail under very stringent conditions. In doing so, the Court relied on a few early cases holding that common law principles should be applied in interpreting the NSL and that Article 42 should be construed in line with guarantees of human rights enshrined in Articles 4 and 5 of the NSL. When the prosecution appealed against this decision in the Court of Final Appeal (CFA), the CFA upheld the broad interpretation approach adopted by the Court of First Instance to preserve human rights and freedoms. However, it found that the Court’s judgement “misapprehends the nature and effect of the threshold requirement laid down” by Article 42 (2) of the NSL. As a result, several people prosecuted under the NSL have offered to surrender many of their rights and freedoms in the hope of obtaining bail, but with little success.
The NSL has transformed Hong Kong from a liberal constitutional territory into a remnant part of a security state under Beijing’s direct control. The high degree autonomy enjoyed by Hong Kong under the Basic Law has got diluted significantly in practice, because the NSL “provides the central authorities with the perfect vehicle for ruling Hong Kong in a very direct and overt manner.”
National security has become an overarching and cross-cutting policy across all government departments. Almost everything from elections to education, health, media, immigration, is being subjected to national security considerations determined subjectively be China and the Hong Kong government acting on Beijing’s behest.
Civil and political rights are being restricted. The trial of Jimmy Lai is an example in this context. The judges deciding cases under the NSL or dealing with judicial review claims against politically sensitive government decisions, hesitates to take decisions which might displease Beijing or pro-Beijing media and politicians. NSL is being used as a tool to curb dissent, target political opponents and restrict civic space.
