“NSL 47” subversion trial commences over democratic primary election

One of the most significant national security trials in the PRC government’s crackdown on Hong Kong began on 6 February 2023. As mandated under the Hong Kong National Security Law (“NSL”), the trial is being heard by three judges from a panel which is handpicked by Hong Kong’s Chief Executive. Also, as directed by the government, the trial is being heard without a jury. This is a completely new practice, since juries for High Court trials (which deal with the most serious crimes) have been a feature in Hong Kong’s common law legal system for 177 years.

The defendants are pro-democracy legislators, politicians, activists, union leaders and community workers (commonly referred to as “the NSL 47”) who were charged under the NSL with conspiring to “subvert” state power. They are accused of having held an unofficial pre-election primary aimed to select candidates among the pro-democracy camp to run in the 2020 legislative council elections (which, ironically, were later cancelled by the government). Such unofficial primaries had been a common feature of elections in the past, but days later the PRC government declared the primary to be illegal. The whole case rests on hypothetical actions that the defendants might make in the future. We believe this is a clear-cut violation of the right to run for public office under international human rights law. Worse still, most defendants have been detained for almost two years prior to trial, with some even in solitary confinement. They were denied bail under the NSL (which lays down a presumption that bail will be denied). By the time of trial, only 13 of the 47 had managed to obtain bail. Prolonged pre-trial detention undermines the chance of a fair trial and the rule of law. International law requires that pre-trial detention should be the exception, not the rule: see Article 9 of the ICCPR, General Comment 35 at para. 38, and Principle 39 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

(This article originally appeared as an item in the Jan-Feb 2023 edition of our newsletter.)

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