The highest court in Hong Kong on Tuesday confirmed the draconian national security law imposed by Beijing by opposing the release on bail of pro-democracy magnate Jimmy Lai, in a long-awaited judgment.
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This decision confirms the radical impact that this text has on the theoretically semi-autonomous region, and in this case on the legal traditions of “Common Law” inherited from the former British colonial power, at the time when Chinese power hardens. its repression in the financial center.
Mr Lai, owner of the pro-democracy tabloid Apple Daily, is among more than 100 activists who have been arrested in the name of this drastic national security law since it was imposed in late June 2020, in response to the months of 2019 events.
One of the best-known figures of the pro-democracy movement, the septuagenarian is being prosecuted for “collusion with foreign forces”, one of the crimes targeted by the new law, because he would have called for sanctions against Hong Kong and the China.
The High Court was called to rule on Tuesday on the issue of his release on bail.
“Specific exception”
The presumption in favor of bail in non-violent cases has always been a constant in the Hong Kong justice system.
But the law on national security reverses the reasoning by arguing that this release “should not be granted (…) unless the judge has sufficient elements to believe that (the accused) will not continue to commit acts. endangering national security ”.
Mr. Lai was arrested in December, then released a week later on bail of 10 million Hong Kong dollars (one million euros), with very strict judicial review including house arrest and ban. give interviews or post anything on social media.
But he was again taken into custody after an appeal from the prosecution.
It is to this recourse that the High Court, composed of five magistrates, has just ruled in favor.
“The judge’s decision to grant bail to the defendant must be overturned,” the High Court judges said. “In the meantime, the defendant remains in detention.”
The National Security Act, says the ruling, “creates a specific exception to the general bail rule and sets a severe limit on bail applications.”
The magistrates specify that Mr. Lai can reiterate his request for release to the judge of first instance who will however have to take into account their opinion.
Safety law prevails
Many jurists were impatiently awaiting this decision to see if the Hong Kong judges could pose as constitutional guarantors, or even a counter-power, in the face of Beijing’s national security law.
These magistrates had to balance the wording of this text, the local judicial traditions and the freedoms enacted by the Basic Law which serves as a mini-constitution in Hong Kong.
But in the end it seems that the law on national security prevails over any other text.
And in a tweet, the Chinese nationalist daily Golbal Times hailed the High Court’s decision, presenting Mr. Lai as a “secessionist.”
The entry into force of the National Security Act is possibly the most important turning point in the relationship between Beijing and Hong Kong since the territory was surrendered by London in 1997.
For many observers, this text denies the promise made during the handover to grant Hong Kong very wide autonomy, especially in judicial matters, by criminalizing certain opinions and by removing the legal safeguards between Hong Kong and the system. opaque and politicized legal system of mainland China.
And senior leaders in mainland China have spoken openly in favor of a “reform” of the Hong Kong justice system.