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This week in politics_1:Primaries Candidates Sued for Subversion

This is translated from CitizenNews' weekly digest tracking Hong Kong's political news over the past week. Part 1: Primaries Candidates Sued for Subversion, Prosecutions Reduced to Tool of Threat(一周政情(上):初選控顛覆 檢控淪威嚇工具

This week in politics_2:Election Rules Changed, Council Turned into Rubber Stamp

In the past week, two political news items attracted the most attention. One is that the Department of Justice formally prosecuted 47 people for organising or participating in the pan-democratic primaries. The bail hearing took several days, with some of the defendants fainting sent to hospital. 15 were granted bail, but with DOJ's immediate appeal, only 4 were bailed at last. Secondly, the Two Sessions are convened in Beijing. The NPC agenda includes amending the electoral arrangements in the Annexes to the Hong Kong Basic Law in order to fully implement Beijing's demand for "patriots administering Hong Kong".

The 47 Activists' Case

The case of the 47 people is about the implementation of the National Security Law in Hong Kong. The defendants, including the most prominent and popular candidates from the pan-democratic camp, have already caused an international sensation before the trial. The defendants were remanded in court on Monday, attracting a large number of people to attend the court hearing. Although the bail hearing was not allowed to be reported by the media due to legal restrictions, some parts of the trial, especially the defendant's generous speech, were widely circulated on the Internet and touched the emotions of thousands of people at home and abroad. There is much to analyse in this case, and a brief summary is set out below.

(1) The charge was laid at least one month earlier than originally scheduled. After the high-profile arrests of 55 people a month ago, the police had originally informed them to report to the police station in early April, but last week they gave them an earlier notice to report on 28 February (Sunday). Right after the hearing begins, the prosecution requested the judge to postpone the hearing for 3 months because the prosecution information of a number of defendants was not yet ready, indicating that the prosecution was not ready for the trial. The case was hastily brought forward to 1 March for some reason. This reason is believed to be related to the convening of the National People's Congress in early March, as the prosecution of 47 pan-democrats for conspiracy to subvert political power is a major political news story that has rocked Hong Kong and the international community. This case was directly supervised by Beijing's National Security Office in Hong Kong, otherwise, without the approval of Beijing's senior officials, it would not have been launched on the eve of the Two Sessions of the National People's Congress.

Therefore, if we read this case together with the "patriots administering Hong Kong" speech given by Xia Baolong, Director of the Hong Kong and Macao Affairs Office, a few days before, and the speech given by Wang Chen, Deputy Secretary-general of the National People's Congress, on reforming Hong Kong's electoral system a few days after, we can see the whole political message that Beijing wants to convey, namely that the pan-democrats will not be allowed to try to seize more than half of the seats in Hong Kong's Legislative Council. If the pan-democrats try to do so, they will have to be dealt with by the crime of subversion under the National Security Law. The electoral system will have to be drastically revised to eliminate any possibility of the pan-democrats seizing power and changing the status quo, so that all political power in Hong Kong will be firmly in the hands of those who are favoured by Beijing, which is the true meaning of "patriots administering Hong Kong".

(2) The number of people prosecuted in the case is much higher than expected by the political sector. Of the 55 arrested, only 8 have not been prosecuted for the time being, while the remaining 47 have been charged collectively. This figure is a political message in itself - if the purpose of prosecuting the pan-democratic primaries is to make an example of them, only a few organizers or core participants need to be prosecuted, and the goal can be achieved. The Occupy case a few years ago is a case in point. The number of participants in the Occupy case was in the tens of thousands, but only nine people were charged in the end. As many as 600,000 people participated in this pan-democratic primary election, and the government has no qualms about charging most of the primary election participants, including many who lost the primary election and were not in the running even if the election was not postponed, with the felony of conspiracy to subvert political power. Such a large-scale prosecution is an attempt to uproot the entire pan-democratic camp. From moderate pan-democrats to radical pan-democrats, regardless of the Democratic Party, Civic Party, League of Social Democrats and the localist camp, all of them are classified as subversive elements. Even if some of the defendants are eventually acquitted, they are politically labelled as "unpatriotic" who do not support the Basic Law and the National Security Law, and unless they openly admit their mistakes and declare their loyalty, they will not be able to pass the future eligibility test and will never be allowed to stand for election or serve in public office. This is the beginning of a major reshuffle in Hong Kong's political arena, starting with the prosecution of 47 people.

(3) The way in which the prosecutions were instituted, the harshness of the National Security Law was highlighted at every turn, obviously to maximise the political effect of intimidation and suppression. In fact, the calculation of this intimidation was already evident at the time of arrest, otherwise why would over 1,000 police officers have been deployed to deliberately arrange for the arrest of over 50 people on the same day, as well as to wake up the arrestees in the early morning, and to hold the defendants in handcuffs in front of the media cameras? The defendants were not thieves, most of them had no criminal records and many were professionals, so according to normal law enforcement philosophy, it would have been sufficient to arrange "appointed arrest" at the police station. However, it was clear that law enforcement wanted to treat them badly and humiliate them, so they were unnecessarily detained overnight before the case was brought to court. There were not enough seats at the dock in the court and the 47 defendants were not given the opportunity to shower and change, and were forced to squeeze into a very cramped space. But the judges and prosecutors who led the trial seemed to have no sense of it, and the first day of the hearing went into the early hours of the morning, leaving several of the defendants so exhausted that some fainted and were sent to hospital, while the rest were sent to a detention centre temporarily and brought back to court a few hours later, deprived of their basic right to sleep and unable to shower and change, with hygiene deteriorating by the day. After five days of this torture, the judge announced that 15 of the 47 had been granted bail, but in a rare move, the prosecutor asked for a review in court, not even allowing the defendants to regain their freedom for a few days, but in any case taking advantage of the new restriction on the right to bail under the National Security Act, which would keep unconvicted persons without trial in remand for several months. The only effect this will have is to intimidate and deter.

(4) The charges brought in this case highlight the new norm of Mainland legal concepts overriding Hong Kong common law concepts. The definition of subversion requires the defendant to use force or threat of force or other unlawful means to seriously undermine, interfere with or obstruct the performance of the functions of the government in accordance with the law. The prosecution argues that the pan-democratic candidates in the primary election promised each other that if they were elected and obtained a majority of seats in the Legislative Council, they would join hands to veto the Budget to paralyse the operation of the government and force the Chief Executive to resign. This is an unlawful act to seriously undermine and interfere with the operation of the regime. The problem is that Members of the Legislative Council can vote against the Budget, which is one of the powers and functions of the Legislative Council expressly conferred by the Basic Law. If Members vote in accordance with the powers conferred by the Basic Law and the Rules of Procedure, it cannot constitute an unlawful means and cannot be regarded as obstructing the performance of the functions of the authorities in accordance with the law.

Moreover, the charge of conspiracy requires a criminal motive, and there is a clear agreement among them. The pan-democratic candidates in the primary election have different views on how to use their power after being elected to force the government to negotiate for the implementation of dual universal suffrage, and these views were clearly revealed in the primary election forum. What was similar is that they all believed that future political games must be in accordance with the law. In other words, the 47 pan-democrats have neither a clear agreement to act in concert nor a criminal motive to commit a crime. If the provisions on subversion under the National Security Law are understood in accordance with Hong Kong's long-standing common law system, it is simply impossible to prosecute conspiracy to commit subversion.

In other words, the power to veto the Budget as granted by the Basic Law does not include the power to veto the Budget regardless of its merits and demerits.

Although they have not yet reached the stage of having a clear plan, the directional joint statements made during the primary election, together with the "mutual destruction" analyses of individual scholars, have turned out to be sufficient evidence of conspiracy to break the law. The prosecution had no qualms about being challenged by lawyers and judges trained in common law. Hong Kong courts would have to comply if the prosecution presents both the National Security Law and the interpretation right of the Basic Law by the NPC, which has the final and most authoritative power to interpret the law. This means that the SAR Government's law enforcement and prosecution efforts are fully aligned with the Mainland, with the Mainland's legal philosophy overriding and replacing Hong Kong's common law.

(5) The effect of this prosecution is to push the judiciary into the centre of a political whirlpool, forcing the judges to politicise the trials. Although the case is still at the stage of hearing whether to grant bail, the Court of Final Appeal has confirmed the full validity of the National Security Law, as there was a previous ruling against Jimmy Lai's application for bail. The threshold for granting bail under the National Security Law is significantly higher than that of ordinary criminal cases. The lawyer representing the defendant in Jimmy Lai's case had agreed to a number of harsh conditions, such as not making remarks to the public and not leaving home without permission, and living under house arrest while awaiting trial on bail, but he was still denied bail. That was already a bad precedent in NSL-related cases.

However, the CFA also made it clear that this did not mean that bail would not be granted to the accused in the National Security case, nor did it mean that the presumption of innocence would be abolished. If bail is granted to most of the defendants, Beijing will be furious and threaten to intervene with the interpretation of the law, or even send individual defendants to China for trial.

If all of the defendants were denied bail, the judges of the Court of Final Appeal would be angered, and the judiciary would be accused of being responsible for abolishing the presumption of innocence.

The judge who presided over this case heard the case with great trepidation for five days and finally granted bail to 15 defendants, slightly less than a third of the total. The judge was obviously walking a tightrope, trying to satisfy Beijing's demand for a national security law that would make it as difficult as possible for the defendants to be released on bail pending trial, while at the same time opening a narrow seam by releasing a few defendants who had weaker cases (e.g., those who had not signed the annex to the undertaking document in the primaries) or who had more sympathetic backgrounds (e.g., professionals who had not been involved in politics in the past) and who were not heads of political parties or organisational figures, thereby proving that it was still possible for the defendants to be released on bail under the national security law, and that the only thing they could not get was the special circumstances of their cases, and that the arguments put forward by the defendants were insufficient to convince the court.

The judge had to go to such lengths to weigh the political consequences, but the outcome was still unpalatable to both sides, and the Department of Justice immediately appealed the case. The family and friends of the defendants complained in tears that from now on, the NSL-designated judges would not be able to be supremely independent and decide cases on the basis of legal reasoning and evidence. From the beginning of the bail debate, every procedural dispute and every legal argument that followed was inevitably a political tug-of-war. The judicial change in Hong Kong began when the Chief Executive appointed NSL judges to hear national security law cases. The several days of court hearings on the case and the bail case illustrate in a concrete and subtle way how politicised judicial hearings can look like.