Several of us were recently asked to write essays for Taiwan’s Academia Sinica on developments in Hong Kong. These will be formally published in March but, in view of the pace of events and the importance of the topic, we have been authorized to make our views available now.
HONG KONG’S TRANSFORMED CRIMINAL JUSTICE SYSTEM: INSTRUMENT OF FEAR
By Jerome A. Cohen*
Abstract
This essay demonstrates how recent, comprehensive changes in Hong Kong’s criminal justice system have transformed it into an instrument of fear that has understandably intimidated a formerly vibrant society into political silence. An intensive surveillance system now reaches every aspect of society. Aggressive criminal investigation techniques now invade formerly protected freedoms of expression. Aided by reversal of the traditional presumption in favor of bail pending trial, government now punishes people under the new National Security Law (NSL) by detaining them for months or years before cases are finally decided. Recent restrictions on Legal Aid limit prospects for independent criminal defense. Political operatives now decide whether and what types of NSL prosecutions should be brought. Trial by jury has been eliminated for major NSL offenses, and only judges who are deemed politically reliable can adjudicate such trials. Also, appellate judges are under various pressures, and constitutional issues that were formerly thought to be the exclusive province of the Hong Kong courts are now dictated by the Standing Committee of China’s National People’s Congress. Moreover, increasingly, local criminal procedures that do not fall under the NSL are nevertheless being adversely affected by the current obsession with national security. The NSL era’s transformation of criminal justice has effectively suppressed popular protests and democratic practices.
KEYWORDS: national security, surveillance, criminal justice, investigation, bail, jury, defense lawyers, prosecutors, judges, Constitutional Law, human rights.