David A. Rezvani

Opinion | National security: how stifling political dissent became part of Hong Kong’s rule of law

The rule of law is dependent on the laws in place. If they are in some ways repressive, then that form of law will govern. This may have been Beijing’s intention in introducing the national security law

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A statue representing Lady Justice is seen on the Court of Final Appeal building in Central, Hong Kong, in July 2018. Photo: EPA-EFE

David A. Rezvani

Published: 6:45am, 20 Feb 2022

Some are concerned that the rules created by the 2020 national security law will diminish Hong Kong’s system of rule of law. They, for example, point out that under the current system, when there is disagreement with the pre-2020 Basic Law, the national security law will dominate.

Hong Kong’s Court of Final Appeal acknowledged this last year when it said it would not review “any alleged incompatibility as between the NSL [national security law] and the Basic Law or the International Covenant on Civil and Political Rights (“ICCPR”) as applied to Hong Kong”.

This, then, cleared the path for the national security law to specify (under Article 43) new bodies, such as the Committee for Safeguarding National Security that would create rules that allowed Hong Kong police to engage in searches, asset seizures and surveillance with fewer procedural safeguards and minimised judicial oversight.

As a consequence, authorities have jailed scores of pro-democracy leaders. Amid police raids, accusations of sedition and confiscated assets, media organisations (such as the Apple Daily, Stand News, Mad Dog Daily and Citizen News) shut down. After vigorous warnings against violating the new rules, large-scale protests have ended.

Still other rights specified in the pre-2020 Basic Law, like the right to a jury trial and bail were also weakened by the national security law. Previously, defendants would usually be granted bail – rather than languishing for months in jail before a trial determined their guilt or innocence.

As it says in Article 5(3) of the Hong Kong Bill of Rights, “[it] shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial”.