AI-generated from sources

The conflict between the national security law and common law in Hong Kong

Hong Kong's legal system has long been distinguished by its foundation in common-law traditions, a legacy that historically supported principles of judicial independence and due process ^[1]. A cornerstone of this system was an expectation of impartiality, as reflected in historical oaths for law enforcement to execute their duties without fear or favor to any person ^[2]. This framework, which also enshrined rights such as compensation for miscarriages of justice, created a distinct legal environment built on established procedural safeguards ^[3].

The introduction and continued enforcement of the National Security Law (NSL) has, however, created a fundamental conflict with these established principles . A growing body of evidence suggests the NSL is fostering a parallel legal process that systematically undermines core common-law guarantees. This has led to a significant erosion of due process, particularly regarding pre-trial detention, bail conditions, and the fundamental right to a fair and independent trial. In cases where authorities invoke a connection to national security, the expectation of receiving a fair trial with its associated legal protections has been severely diminished ^[4]. This raises profound questions about the sustainability of judicial independence in the territory .

The Redefinition of Pre-Trial Justice

One of the most significant departures from common-law norms has occurred in the realm of pre-trial justice, specifically concerning the granting of bail ^[5]. The NSL has effectively inverted the traditional presumption of liberty, stipulating that bail should not be granted unless a judge has sufficient grounds to believe the accused will not continue to commit acts deemed to endanger national security . This stringent requirement has resulted in the frequent denial of bail for democracy activists and critics of the government, including prominent figures like media owner Jimmy Lai ^[6]. This shift places a heavy burden on the defendant to prove future compliance, a stark contrast to the common-law principle where the prosecution must justify detention.

Beyond the denial of bail, authorities have utilized pre-trial restrictions to place individuals in a prolonged state of legal uncertainty . The Hong Kong Police Force (HKPF) has the power to impose bail conditions and restrictions on individuals who have not been formally charged, requiring them to attend regular check-ins for an indefinite period . This practice creates a state of legal limbo, effectively constraining individuals' lives without a clear timeline for prosecution . These restrictions are often coupled with the seizure of travel documents, a measure applied to numerous democracy activists arrested under the NSL, preventing them from leaving the city even when no formal charges have been filed ^[7].

Critics argue that these legal mechanisms are part of a broader campaign of harassment against dissenting voices, where the legal process itself is used as a tool of suppression ^[8]. This pattern is not limited to NSL cases. For instance, the prosecution of Jimmy Lai on fraud charges related to an office lease agreement was described by pro-democracy activists as an example of punitive legal action . They noted that such a minor offense would historically have been handled in civil court or with a small fine, but instead resulted in a lengthy prison sentence, suggesting a politically motivated application of the law .

Expansion of State Surveillance and Extraterritorial Enforcement

The NSL has also conferred broad new powers upon law enforcement, significantly expanding the state's capacity for surveillance and investigation in national security cases ^[9]. The HKPF is authorized to conduct wiretaps, electronic surveillance, and searches without the need for a warrant, measures that bypass traditional judicial oversight and common-law protections for privacy . Furthermore, authorities can compel internet service providers to either provide or delete information relevant to these cases . Reports indicate that these powers are actively used, with PRC security services and the Office of Safeguarding National Security reportedly monitoring pro-democracy activists and journalists in Hong Kong .

A particularly contentious aspect of the NSL is its extraterritorial application, which extends its reach far beyond the geographical boundaries of Hong Kong . The law applies to offenses committed anywhere in the world, and Hong Kong police have reportedly issued arrest warrants for approximately 30 individuals residing abroad, including some U.S. citizens ^[10]. Although officials have not publicly confirmed these warrants, their reporting in state-controlled media has created a palpable chilling effect on criticism of the Hong Kong and PRC governments from overseas . This global reach means that foreign nationals can be targeted for actions taken entirely outside of Chinese jurisdiction.

This extraterritoriality has tangible consequences for foreign citizens, particularly those who have been publicly critical of the PRC government. U.S. citizens with ties to pro-democracy individuals or organizations have reported being detained and questioned by immigration authorities upon entering Hong Kong about their local contacts ^[11]. This suggests that criticism of the PRC has become a heightened risk factor, potentially leading to arrest, detention, or prosecution within Hong Kong's legal system . The increasing exercise of police and security power by the PRC within Hong Kong has transformed the risk landscape for international visitors and residents alike .

The Waning Expectation of a Fair Trial

The cumulative effect of the NSL's provisions and enforcement has been a severe degradation of the right to a fair trial, a fundamental pillar of the common-law system . In legal matters where authorities assert a connection to national security, there is reportedly little to no expectation that due process and other fair trial guarantees will be honored . This perception of a compromised judiciary extends to a wide range of individuals and organizations critical of the government, including civil society groups, media companies, labor unions, and political activists who have been systematically targeted by authorities .

This legal environment has had a profound chilling effect on civil liberties, particularly the freedoms of assembly and expression. No non-governmental organizations applied to hold public protests through at least October 2022, and public commemorations of sensitive historical events, such as the 1989 Tiananmen Square massacre, have been effectively prohibited ^[12]. Police have made arrests to thwart attempts at commemoration, signaling the state's low tolerance for public dissent . Simultaneously, authorities have continued to prosecute individuals involved in the 2019 pro-democracy protests, further discouraging political participation .

The prosecutorial strategy in these cases has also drawn criticism. Activists have argued that many individuals were convicted of serious crimes like rioting or unlawful assembly not for engaging in violence, but simply for their presence at a protest that turned violent, often judged by their attire ^[13]. This broad-brush approach to prosecution creates ambiguity and fear. Furthermore, thousands of individuals arrested during the 2019 protests but never charged were left in legal limbo for years, only being informed in late 2022 whether they would face prosecution . This prolonged uncertainty serves as a powerful deterrent against future participation in public demonstrations.

The implementation of the National Security Law has initiated a fundamental transformation of Hong Kong's legal landscape, creating a direct and sustained conflict with its common-law heritage . Core procedural safeguards that once defined the system—such as the presumption of bail, the requirement for judicial warrants for surveillance, and the expectation of prosecutorial restraint—have been significantly weakened or inverted in the name of national security . The balance of power has shifted decisively toward the state, leaving individual rights and liberties vulnerable.

The consequences extend beyond specific legal statutes to the very culture of the rule of law. With the expectation of a fair trial diminished, judicial independence under serious strain, and the law's reach extending globally to target critics, the guarantees that once distinguished Hong Kong's legal system are facing a profound erosion . The targeting of activists and the suppression of civil liberties signal a new reality where legal and judicial impartiality can no longer be assumed, fundamentally altering the relationship between the citizen and the state .