The thing that worries me about the proposed local national security legislation is that it seems to have been drafted with scant consideration of the likely consequences in practice. After all our judges and prosecutors have already had national security legislation to play with for three years, and some things have become obvious.
For example, the arrangement for bail in national security cases is in theory that the magistrate must be satisfied that the defendant is not going to commit another national security offence if released pending trial.
As the organised opposition, or even the organised criticism, has been trampled into the dust and the revised constitution no longer offers a role for dissident politicians you would think this was a fairly easy condition to satisfy. In practice the prosecution invariably opposes bail and in the vast majority of cases bail is refused.
Similarly under the existing national security law the Secretary for Justice may – but does not have to – ask for a juryless trial before three national security judges. On every occasion so far when a jury trial might have been appropriate the prosecution has in fact opted for a juryless trial. It is difficult to believe that this is entirely unconnected with the pleasures of having three judges of your own choice deciding on the success of your prosecution. Accordingly it seems likely that this is now a routine practice and there will never be a national security trial before a jury.
Turning to the new proposed “Article 23” version we can see number of areas where something similar may be expected to happen.
Consider for example the proposed exemption from the rule that a suspect in custody must be charged or released within two days. This will be replaced by an arrangement under which a senior police person can ask for 14 days of uncharged custody to allow inquiries to proceed, with the possibility of further renewals for seven days at a time.
In other jurisdictions this is a rarely used option which comes up in cases where the prosecution would have to rely on, and disclose in open court, evidence obtained clandestinely or from an overseas source. It was introduced in a panic after a raft of terrorism cases, and it was and is clearly understood that it would be used seldom, in cases where there was a real concern about what the arrested person might get up to if released.
No such condition is incorporated in the proposed law here. In the light of practice so far you have to be very optimistic to dismiss the possibility that arrested suspects will be subjected to an ordeal practically undistinguishable from indefinite detention without trial or charge. The police will always find it convenient to have the suspect to themselves for two weeks. They will also find it easy.
The limit on detention is of course a limit on police powers, and it is intentionally so. It is an important protection for suspects who, in the end, may not be charged at all, and if charged may in the end be acquitted. We can all think of cases in which it would be necessary and desirable that a suspect should be detained for more than the stipulated couple of days without charge. In practice, though, that is likely to become a rule, rather than an exception.
I have similar misgivings about the proposed restrictions on suspects’ right to choose their own lawyers. Once again we can all think of scenarios in which this might be a useful power, and might be used to prevent a serious breach of public order. Once again we have to wonder whether it will be used as rarely as these unusual scenarios imply.
Or there is the curious proposed arrangement under which national security prisoners would not be eligible for early release on the same terms as other prisoners. This is curious because we must supposed that the existing arrangements for early release include an assessment of the inmate’s chances of reoffending if returned to the outside world.
Asking the Commissioner for Correctional Services to certify in addition that the prisoner will not reoffend against the national security legislation places a civil servant with no relevant expertise in a hot seat, from which the most comfortable exit will be to refuse to release the person concerned. Which is perhaps the intention.
Then there is the question of “absconders”. An absconder, properly understood, is someone who has been charged with an offence and flees the city to avoid trial. On the other hand Hong Kong people have the right to emigrate if they wish to do so and there is nothing in law or morality to suggest that they have a duty to return to Hong Kong if the authorities later decide to charge them with an offence.
As before we can all think of rare occasions when a more flexible interpretation of this would be useful, and there would be some legitimate purpose in the proposed laws against people having anything to do with an “absconder”. We can also see scenarios in which a sensitive government, stung by criticism in an overseas country from a Hong Kong exile, would charge him with an offence, issue an arrest warrant and classify him as an “absconder” on the basis of actions or words which were perfectly legal in the place where the actor or speaker did or spoke them.
Of course defenders of the proposed legislation will say that we should trust officials to do the right thing and not abuse powers which are clearly open to abuse. But our government has form in this area.
The rule of law requires that the powers conferred on officials should be used in good faith for the purposes for which they were intended, as Lord Bingham put it in an important book on the subject. But this is not what we see in Hong Kong. Here we see opposition coffee shops submerged in an avalanche of sanitary inspections, inconvenient bookshops driven out of business by a similar sort of bureaucratic persecution, and huge tax bills landing mysteriously in the letterboxes of organisations that have had the temerity to ignore calls for their dissolution in the government’s poodle press.
Legislators should approach proposed legislation on the basis that if a power can be abused it will be abused, and adjust it accordingly. Critics condemn the new patriotic legislature as a puppet parliament, a congress of complacency full of people who have never seen a government proposal they didn’t like. The new national security bill is a chance for legislators to prove the critics wrong. Or not.
tim's experiment 