Jan 14, 2022·edited Jan 14, 2022Liked by Samuel Bickett
Re the bail situation, the current operation seems to be a 25-33% bail rate for the "safest looking", to give effect to the clear intention that most defendants don't get bail and the fact that bail is not just ruled out. The people up there seems to have accepted this interpretation.
TBF, I don't think the "will not continue to commit" is malice on the drafters' (someone in LAC) part. If nothing else, it could bounce in the worst possible way - to the drafter, who probably breathed a sigh of relief when the Hong Kong judges handled it the way they did. Keeping it to "will not commit" will do nicely for their purposes. "Will not continue to commit" is actually quite common language - one example below:
and the drafter probably just cut and paste the formulation, thinking he is following "common law" practices.
The irony is that in some ways, the mixture of NSL and the common law means that defendants can have a poorer shake than they would even in the Mainland. The first day NSL was enacted, I remember the police arresting a 15-year-old, and I was thinking, "Man ... up there wouldn't she get until 16 before she can be liable for a national security crime at all"?
This bail situation is another. The common law *assumes* good faith on the part of the prosecutor and the courts, and thus has no hard-baked time limits. Up there, even with the relevant authorities rubber-stamping all the extensions, in two years it must be decided once and for all in the court. Possibly motivated by a 99% statistical conviction rate, the rule is actually followed, more or less. Two years starts looking decent when compared to infinity.
If "pre-trial detention" is technically not punishment, even in the case of bail being granted ... the judge sets tight bail conditions that look very similar to the "Control" + Deprivation of Political Rights articles in the Chinese Criminal Law. In essence, by the PRC's own written standards, the defendants are being punished for indefinite periods.
The problem for the CFA is courage aside, that there's no statutory basis (like a hard deadline in law) that allows them to justify throwing the case out. In essence, the NSL wants the courts to treat the accused acts as at least equivalent to a violent crime, a far cry from misfeasance. I don't think a "soft standard" like "abuse of process" is going to cut it.
Interesting to see the "continuing" language in the Maine Bail Code, particularly how similar it is to the HK language. But the provision you linked is for quite a different circumstance--it's when bail has *already been revoked* because the defendant violated bail conditions. He or she is now back in jail, and the statute is actually about still giving the defendant another chance to be released before trial, if at all possible. So if anything, it just underscores the presumption of innocence--even when a defendant violates bail.
The Maine statute that is the equivalent of the HK pre-conviction disposition that is the subject of this article is section 1026 of the bail code: https://legislature.maine.gov/statutes/15/title15sec1026.html. Section 2A says that a defendant should be released *without even having to pay a bond* UNLESS certain risks exist. If such risks exist, then Section 3 still requires the judge to put in place the minimum possible bond and/or conditions to ensure future appearances.
I agree with you that the intention of the NSL drafters isn't malice, or at least not legal malice. The intention, I think, is to revoke the presumption of innocence and begin punishment so as to shift power from the courts to the police (as discussed in the article).
I wouldn't call abuse of process a "soft standard," at least not traditionally, and it is statutory as well as precedent-based. It has a long and well-established body of case law behind it, and as noted the CFA addressed the standard for finding an abuse in detail just a few years ago. I do get your point on the absence of a hard deadline in the law, but common law courts have to deal with these sorts of issues all the time. Factual circumstances do matter, but when compared to precedents where an abuse of process has been found, or at least in dicta speculated upon (like the 2011 CFA decision), it's a pretty easy case here that repeated delays by the DOJ while simultaneously imprisoning non-dangerous unconvicted constitutes an abuse of process. So that brings us back to courage and politics, and the fear the CFA has that ruling as a common law court is supposed to rule, using judgment, precent, and common sense, will cause Beijing to box them out altogether.
It's a bit murky, but my understanding is that it's supposed to be an administrator assigning them based on availability (with no consideration of substance, politics, etc). We know, of course, that that's not happening. The large majority of non-NSL political cases are getting "randomly" assigned to NSL and other vociferously anti-rule of law judges & magistrates.
Re the bail situation, the current operation seems to be a 25-33% bail rate for the "safest looking", to give effect to the clear intention that most defendants don't get bail and the fact that bail is not just ruled out. The people up there seems to have accepted this interpretation.
TBF, I don't think the "will not continue to commit" is malice on the drafters' (someone in LAC) part. If nothing else, it could bounce in the worst possible way - to the drafter, who probably breathed a sigh of relief when the Hong Kong judges handled it the way they did. Keeping it to "will not commit" will do nicely for their purposes. "Will not continue to commit" is actually quite common language - one example below:
https://www.mainelegislature.org/legis/statutes/15/title15sec1097.html
and the drafter probably just cut and paste the formulation, thinking he is following "common law" practices.
The irony is that in some ways, the mixture of NSL and the common law means that defendants can have a poorer shake than they would even in the Mainland. The first day NSL was enacted, I remember the police arresting a 15-year-old, and I was thinking, "Man ... up there wouldn't she get until 16 before she can be liable for a national security crime at all"?
This bail situation is another. The common law *assumes* good faith on the part of the prosecutor and the courts, and thus has no hard-baked time limits. Up there, even with the relevant authorities rubber-stamping all the extensions, in two years it must be decided once and for all in the court. Possibly motivated by a 99% statistical conviction rate, the rule is actually followed, more or less. Two years starts looking decent when compared to infinity.
If "pre-trial detention" is technically not punishment, even in the case of bail being granted ... the judge sets tight bail conditions that look very similar to the "Control" + Deprivation of Political Rights articles in the Chinese Criminal Law. In essence, by the PRC's own written standards, the defendants are being punished for indefinite periods.
The problem for the CFA is courage aside, that there's no statutory basis (like a hard deadline in law) that allows them to justify throwing the case out. In essence, the NSL wants the courts to treat the accused acts as at least equivalent to a violent crime, a far cry from misfeasance. I don't think a "soft standard" like "abuse of process" is going to cut it.
Interesting to see the "continuing" language in the Maine Bail Code, particularly how similar it is to the HK language. But the provision you linked is for quite a different circumstance--it's when bail has *already been revoked* because the defendant violated bail conditions. He or she is now back in jail, and the statute is actually about still giving the defendant another chance to be released before trial, if at all possible. So if anything, it just underscores the presumption of innocence--even when a defendant violates bail.
The Maine statute that is the equivalent of the HK pre-conviction disposition that is the subject of this article is section 1026 of the bail code: https://legislature.maine.gov/statutes/15/title15sec1026.html. Section 2A says that a defendant should be released *without even having to pay a bond* UNLESS certain risks exist. If such risks exist, then Section 3 still requires the judge to put in place the minimum possible bond and/or conditions to ensure future appearances.
I agree with you that the intention of the NSL drafters isn't malice, or at least not legal malice. The intention, I think, is to revoke the presumption of innocence and begin punishment so as to shift power from the courts to the police (as discussed in the article).
I wouldn't call abuse of process a "soft standard," at least not traditionally, and it is statutory as well as precedent-based. It has a long and well-established body of case law behind it, and as noted the CFA addressed the standard for finding an abuse in detail just a few years ago. I do get your point on the absence of a hard deadline in the law, but common law courts have to deal with these sorts of issues all the time. Factual circumstances do matter, but when compared to precedents where an abuse of process has been found, or at least in dicta speculated upon (like the 2011 CFA decision), it's a pretty easy case here that repeated delays by the DOJ while simultaneously imprisoning non-dangerous unconvicted constitutes an abuse of process. So that brings us back to courage and politics, and the fear the CFA has that ruling as a common law court is supposed to rule, using judgment, precent, and common sense, will cause Beijing to box them out altogether.
I am curious. Who decides which judge presides over what case? Is it like a lottery or a specific person will make the decision randomly?
It's a bit murky, but my understanding is that it's supposed to be an administrator assigning them based on availability (with no consideration of substance, politics, etc). We know, of course, that that's not happening. The large majority of non-NSL political cases are getting "randomly" assigned to NSL and other vociferously anti-rule of law judges & magistrates.
I guess we will never know the identity of this administrator. Am I right?