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Right to Fair Trial Under Threat: GCAL Briefing Paper on NSL

Today, the Georgetown Center for Asian Law, where I am a research fellow there currently, publishes a briefing paper evaluating issues of due process and fair trial under the new national security law of Hong Kong. Here is our description of the briefing paper:

"The right to a fair trial for National Security Law (NSL) defendants is under threat, according to a new briefing paper from Georgetown University Law Center’s Center for Asian Law (GCAL). As the first NSL trials begin, defendants have been hampered by restrictions on their core due process rights, including the right to a jury trial and the right to pre-trial release. At the same time, the selection process for judges in NSL cases raises concerns about judicial independence.

"Since the NSL went into effect on July 1, 2020, the newly-created National Security Department (NSD) of the Hong Kong Police Force has arrested more than 100 individuals for alleged NSL crimes, and over 50 individuals have been charged. (GCAL’s analysis of NSL arrests over the past year can be found here; a full list of NSL arrests and charges is here.) Those charged include prominent pro-democracy politicians and advocates, as well as journalists, grassroots activists, and others. As GCAL documented in a prior report, many see the NSL as part of a larger effort to reshape Hong Kong’s vibrant political scene, and to ensure that the massive pro-democracy protest movement that emerged in 2019 never returns.

"The briefing paper offers an in-depth look into the government’s aggressive approach to NSL prosecutions over the past year, documenting extensive efforts to curtail basic due process rights of those accused of NSL crimes. In general, the government has sought to deny bail to most NSL detainees, only allowing bail in a limited number of cases in which defendants agreed to extensive restrictions on their own basic rights. The government has also asserted a broad power to deny individuals accused of NSL crimes their right to a jury trial; this view was largely affirmed by Hong Kong’s Court of Final Appeal in late June.

"Disturbingly, in a small number of NSL cases, questions have emerged as to whether some NSL defendants have been pressured to dismiss their chosen legal counsel, and to replace them with lawyers from the pro-Beijing camp. Any such moves by the Hong Kong government, or by Mainland officials, would be both highly unusual and deeply inappropriate.

"The briefing paper, Hong Kong’s National Security Law and the Right to a Fair Trial, also takes an in-depth look at the NSD’s expanded investigatory powers under the NSL. Under brand-new Implementation Rules (IRs) issued just days after the NSL itself went into effect, the NSD has the authority to search the homes of NSL suspects, to tap their phones, freeze their assets, and to censor online speech that they deem a threat to national security. In many cases, no judicial warrant is needed, and external oversight is generally limited."

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