Jailed Hong Kong protester files first legal challenge against new security law after early release axed
Hong Kong Free Press
A Hong Kong protester convicted of inciting secession has filed the city’s first legal challenge against a new security law that saw his scheduled early release from prison axed on national security grounds.
Ma Chun-man, who is serving a five-year sentence in jail, claimed the Commissioner of Correctional Services’ decision to revoke his early release was retrospective and a violation of his rights and of procedural fairness. He asked the High Court to order his immediate release.
The commissioner’s decision came days after the Safeguarding National Security Ordinance, known locally as Article 23, was enacted and just two days before Ma was originally slated for release from Tong Fuk Correctional Institution, according to a writ made available for inspection on Monday.
The new law, enacted on March 23 after it was fast-tracked through the opposition-free legislature, stipulates that a national security prisoner “must not be granted remission” unless the commissioner is satisfied that an early release “will not be contrary to the interests of national security.”
It departs from the city’s general practice which can see prison sentences reduced by a third for good conduct in jail.
‘Prison gates’
Ma’s lawyers argued the presumption against early release on good conduct was incompatible with the city’s Bill of Rights Ordinance. It also effectively allowed for an “ideology conversion system” that coerced national security offenders into conformity against their dignity, they said.
“Constitutional rights do not stop at the prison gates,” Ma’s lawyers wrote in the High Court filing.
“If a person originally convicted for a national security offence can be cleared for release just a month earlier… but is then refused release under the new law, one must question what more does the new [law] require, and whether those requirements are lawful,” they continued.
According to the filing, Ma was told by the prison services “in unequivocal terms” in late-February that his release date would be March 25, which would have been almost exactly a third off his five-year sentence.
But on March 23, Ma was informed that his early release would not be granted. He was instead sent to hospital for the next two days, “apparently because the CSD officers took the view that the reversal might cause a huge shock to [his] mental conditions,” his lawyers said.
On March 25, Ma wrote an appeal against the decision and received the written reasons by a committee tasked with assessing prisoners convicted of national security offences on the same day.
The reasons suggested that the reversal of Ma’s early release was due to the commissioner applying the Article 23 legislation against granting a remission, the court was told.
While the committee did not identify any mental or psychological issues with Ma, it concluded that there was no evidence that could demonstrate Ma’s early release would not run contrary to the interest of national security.
Another reason provided was that Ma reportedly “was not enthusiastic in participating in rehabilitation programmes and would not reveal his genuine feelings,” his lawyers said.
His lawyers argued that Ma was not given a fair hearing before the committee while the commissioner did not give adequate reasons for the decision to revoke Ma’s early release.
Dubbed “Captain America 2.0” for carrying the superhero’s shield during the 2019 protests and unrest, Ma has been remanded in custody since November 2020 for inciting secession under the Beijing-imposed national security law.
He was sentenced to five years in jail on appeal for chanting slogans and making speeches that called for Hong Kong’s independence between August and November 2020.
Protests erupted in June 2019 over a since-axed extradition bill. They escalated into sometimes violent displays of dissent against police behaviour, amid calls for democracy and anger over Beijing’s encroachment. Demonstrators demanded an independent probe into police conduct, amnesty for those arrested and a halt to the characterisation of protests as “riots.”
Beijing inserted national security legislation directly into Hong Kong’s mini-constitution in June 2020 following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts – broadly defined to include disruption to transport and other infrastructure. The move gave police sweeping new powers and led to hundreds of arrests amid new legal precedents, while dozens of civil society groups disappeared. The authorities say it restored stability and peace to the city, rejecting criticism from trade partners, the UN and NGOs.
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