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Potemkin Judges: Critical Reflections on the Continued Presence of Hong Kong’s Overseas Non-Permanent Judges

Introduction

 

On 30 June 2020, the National People’s Congress Standing Committee (NPCSC) in Beijing imposed its ‘National Security Law’ (NSL) on the Hong Kong Special Administrative Region.[1] Its provisions—drawn up in complete secrecy—criminalise conduct (including conduct outside Hong Kong) that would elsewhere be recognised as ordinary civic and political participation. Under the NSL, the territory is subject to two distinct state security apparatuses—one made up of Hong Kong police, prosecutors, and judges; the other of Mainland Chinese state security agents—neither of which are subject to meaningful legal or democratic accountability. Despite the lip service paid to fundamental rights in Article 4, the content of the NSL[2]—and the way in which it was imposed—conveyed one clear message: any such rights could be abrogated at will.[3]


More than three years after the imposition of the NSL, Hong Kong’s political and legal orders have been transformed beyond recognition. Opposition parties, civil society groups, and independent media have been shut down by a combination of police raids and intimidation; authorities increasingly inveigh against mere expressions of dissent as acts of ‘soft resistance’ threatening ‘national security’.[4] Pro-democracy politicians and activists have been incarcerated, exiled, or otherwise forced out of the public arena. As of 1 July 2023, a total of 264 people have been arrested, and 148 charged, with NSL-related offences or colonial-era sedition offences; of the latter, 70% have been denied bail.[5] Even exiles are not immune from the reach of the NSL: on 3 July 2023, the Hong Kong government announced HK$1M (approximately GBP 104,800) bounties on eight politicians and activists in exile, including barrister and former legislator Dennis Kwok and solicitor Kevin Yam.[6] As I have argued elsewhere,[7] Hong Kong’s post-NSL legal order is now a dual state[8]—one in which the security apparatus is not subject to any legal restraints, and in which the ordinary, ‘normative state’ can be displaced merely by invoking the deliberately nebulous concept of ‘national security’.[9]

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