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Hong Kong Lawyers: The Next Target of National Security Law

Veteran attorneys leave city in wake of national security law. Beijing says legislation has restored stability in finance hub.

Riot police charge and attempt to detain demonstrators during a protest in Hong Kong, in Jan. 2020.Photographer: Kyle Lam/Bloomberg

Veteran human rights lawyer Michael Vidler decided it was too dangerous to work in Hong Kong the moment a judge designated to handle national security law cases implied offering legal support to democracy activists could be a crime.

Judge Stanley Chan cited a contact card naming two law firms, including Vidler’s, as evidence of how organized the 2019 anti-government camp was in his judgment for an unlawful assembly conviction earlier this year. As to whether the lawyers named were “accomplices” to that crime, Chan said he couldn’t comment.

“It was deeply disturbing for me as a lawyer to be, in essence, accused of inciting a crime because a potential client had a piece of paper on him which listed my firm as a source of legal advice and assistance,” said Vidler, who previously defended now-jailed democracy activist Joshua Wong and won a landmark appeal that recognized spousal visas for same sex couples.

“There was no longer space for my firm to continue its public interest litigation work,” he added, “without an increasing risk of serious adverse consequences for my team and myself.”

Vidler left Hong Kong in May after almost two decades working in the former British colony, and closed his law firm shortly after. His experience reflects growing concern that Hong Kong’s rule of law, for decades a foundational pillar of its standing as an international financial center, is becoming more influenced by the mainland where the Communist Party controls the courts.

A government spokesperson said Hong Kong’s rule of law remained “solid and robust” after the security legislation Beijing imposed on the city in June 2020, crediting it for restoring a “peaceful and stable environment.” The spokesman said Chan made his comments outside the context of a national security law case, and denied that he suggested a lawyer could be criminally liable for simply providing legal services.

Authorities have ramped up pressure on lawyers who’ve defended some of the 10,000 protesters arrested during the 2019 unrest. Prominent barrister Margaret Ng was arrested over her work with a fund providing financial aid to activists, with police reporting other lawyers to their professional bodies for misconduct unearthed in that investigation. She has denied the charges and a court hearing is set for Sept. 19.

Former Hong Kong Bar Association chief and human rights lawyer Paul Harris left the city in March after being questioned by national security police.

“Any degradation of Hong Kong’s strong rule-of-law tradition by hollowing out rule-of-law-related institutions will not be favorable to the security of international investments and finance,” said Michael Davis, a professor of law and international affairs at O.P. Jindal Global University in India, and former law professor at the University of Hong Kong. “Presumably, investors who carry on despite these growing limitations will demand a higher premium on their investments as associated with higher risks.”

The changes strike at a central pillar of China’s 50-year promise to maintain Hong Kong’s liberal institutions and capitalist markets until at least 2047 under a framework called “one country, two systems.” The city will celebrate the halfway mark of that guarantee on July 1, in a ceremony that could be attended by President Xi Jinping.

Lawyers in Hong Kong are operating in an environment where many are debating whether even recognizing the accomplishments of the accused could run afoul of the security law. The stakes are high, since authorities haven’t dropped charges against any of the at least 114 people so far prosecuted as part of national security cases.

Keith Richburg, head of the Foreign Correspondents’ Club, Hong Kong, said the board suspended its longstanding Human Rights Press Awards earlier this year after lawyers advised him the police would probably investigate the organization for “aiding, promoting or celebrating sedition,” according to a recording of a meeting with local journalists to explain the decision. The winners included Stand News, which shut down in December after police arrested seven people connected to the publication on a colonial-era sedition law.

“You won’t get a fair hearing before an NSL judge,” Richburg said a lawyer told him, referring to the national security law.

“How many people arrested on the sedition or national security law have gotten off?” he added. “You think they’re getting a fair trial in Hong Kong and China? Arresting people means that you’re guilty.” Richburg declined to comment further.

Human Rights Reporting

The Society of Publishers in Asia, which is also based in Hong Kong, last week gave out a human rights reporting award to Chinese-language publication Ming Pao for a series on the legal risks involved in commemorating the 1989 Tiananmen Square massacre. It’s unclear if Stand News submitted entries for the SOPA awards. SOPA didn’t respond to questions.

Bloomberg is currently represented on the board the FCCHK, and the editorial committee of SOPA.

The national security law altered Hong Kong’s legal system in several ways: It enabled the city’s leader to choose which judges in the special administrative region can handle security law cases, diminishing the impartiality and independence of the judiciary, and allowed certain cases to be tried across the border, in vaguely defined circumstances -- a power yet to be exercised.

Perhaps most significantly, it changed the rules for bail by removing the presumption of innocence, a precedent that’s seen scores of defendants jailed for more than a year without a trial and has since been expanded to other crimes with a security element.

So far, all four security law cases that have come to trial have resulted in guilty verdicts, with the sole defendant who fought charges denied a reduction in sentence in part because he chose not to plead guilty. Those outcomes have likely put defendants off trying to clear their names, said one senior lawyer, who asked not to be named due to the sensitivity of the subject matter.

These changes have already impacted Hong Kong’s international reputation. Two British judges withdrew from the city’s Court of Final Appeal earlier this year, after the UK government said their roles risked “legitimizing oppression,” while seven US lawmakers have called on President Joe Biden to sanction judges and prosecutors handling national security cases for enabling Beijing’s crackdown on freedoms.

Hong Kong’s global ranking on the World Justice Project’s Rule of Law Index fell three spots to 19th out of 139 countries surveyed in 2021, after holding the No. 16 rank for the past four years, with a decrease in legal accountability for government officials one of the biggest factors for the drop. The city’s legal system still ranks the fifth highest in the region.

Officials used a symposium organized by Hong Kong’s Justice Department last month to defend the city’s legal system, with China’s top local diplomat, Liu Guangyuan, arguing that “countries that claim to promote democracy” were the ones undermining the rule of law around the world by interfering in the affairs of others.

“Hong Kong boasts an independent judiciary and fundamental rights and freedoms fully protected under the Basic Law,” Carrie Lam, Hong Kong’s outgoing chief executive, told the event. “That is why Hong Kong is often the preferred choice for multinational cooperation when it comes to legal and dispute resolution services.”

Two-Track System

Despite fears for the legal protection of civil liberties, four lawyers who either currently practice or recently worked in Hong Kong said there appears to be an expectation in the business community that other areas of law won’t be eroded, which they considered to be misguided. All four spoke on the condition of anonymity.

“Commercial law won’t be interfered with because that’s one of the pillars of Hong Kong being an international center for business, trade, and finance,” said George Cautherley, vice chairman of the International Chamber of Commerce in the city. Maintaining that reputation will be crucial to Hong Kong’s stated goal of expanding the city as an international center for legal and arbitration services.

Thomas Kellogg, the executive director of the Georgetown Center for Asian Law, cautioned that mainland China’s system showed such a bifurcation between public law -- which governs relations between people and a government -- and private law that manages contracts is “difficult.”

China ranked 98th globally in the World Justice Project’s index last year, due to a lack of governmental institutions subject to checks and balances, among other things.

The situation in Hong Kong is becoming “all too reminiscent” of the Xi-era crackdown on rights lawyers in China,” Kellogg said, referencing the “709 crackdown” that saw some 300 human rights lawyers arrested in 2015. Many are still imprisoned, while others lost their licenses.

“The pressure being put on lawyers who take security cases makes it even harder for lawyers to step forward,” Kellogg said. “I worry such cases will only handled by pro-Beijing lawyers, who will press their clients to cut a deal with the prosecution, even if they have strong human rights claims they could make in a defense.”

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