China revealed some details of Hong Kong’s national security law and may be as bad as critics feared

06/24/2020 USA


On Saturday, China’s National People’s Congress (APN), which is expected to pass the law in the coming weeks, gave Hong Kong its first glimpse of what it contains. Critics may have been right to be concerned: As drafted, the law appears to disrupt the city’s cherished independent legal system, allowing Beijing to override local laws while improving its ability to suppress political opposition.

Most controversially, the law gives Beijing the power to exercise jurisdiction over select criminal cases, raising the possibility that, for the first time in Hong Kong’s history, suspects may be extradited across the border to face trial and possibly prison time on the mainland.

Fear of that was what fueled protests against an extradition bill last year proposed by the Hong Kong government. Those protests eventually forced the abandonment of that law, but turned into broader anti-government riots that, according to Beijing, required the imposition of new national security regulations.

Antony Dapiran, a Hong Kong-based lawyer and political analyst, described the new law as a “broad-based takeover by Beijing” over many of the key elements of government and society.

Writing on Twitter, he said the new law “effectively establishes a parallel judiciary (and) eliminates the interpretation and final adjudication power of the Hong Kong courts.”

In a statement, the city’s chief executive, Carrie Lam, said the law would guarantee “Hong Kong’s long-term prosperity and stability,” reiterated that it “would only target an extremely small minority of people,” and said the The proposed bill was “in line with the rule of law” and the “rights and freedoms that are applicable in Hong Kong under the Basic Law and relevant international conventions”.

New system

When Hong Kong moved from British to Chinese rule in 1997, the city’s customary law system remained largely intact. The precedents remained in force, and the protections under the new de facto constitution, the Basic Law, as well as several international treaties, guaranteed a degree of justice and freedom that is not seen in China, where the conviction rate is above 90% .

While the NPC gained the ability to “interpret” the Basic Law, essentially rewriting it in certain cases, the central government had no jurisdiction over individual cases, nor could people be tried for crimes against Beijing that were not illegal in Hong Kong.

The new national security law would change all that. According to details released over the weekend, Chinese security bodies will have the power to “exercise jurisdiction” over national security cases “in specific circumstances,” while other trials under the law will be heard by a panel of judges selected by Beijing city. designated leader

It does not explicitly say whether the suspects could face extradition to mainland China in such circumstances.

Although the draft made reference to the defense of the “rule of law” and various civil liberties, it also subordinates the existing law to the national security bill, so that where there is a conflict, the national security law prevails. In practice, this could mean that when a national security prosecution violates human rights protected by Hong Kong law, those rights are suspended.

Writing after Saturday’s announcement, Jerome Cohen, an expert on Chinese law, dismissed the “visual appeal” of human rights, noting that “the same provisions in the draft (law) would appear to violate those protections.”

“Surrender has clearly become a takeover,” added Cohen.

Kevin Yam, a Hong Kong-based lawyer and former coordinator of the Progressive Lawyers Group, said the proposed law did not warrant legal interpretation, adding that “there is nothing to analyze.”

“It is what they say it is,” he added. “And if they can’t do what they say it is when they want something, they will just change it the way they want.”

Judicial maneuvers

While no real public consultation or referendum on the bill has been suggested, various provisions revealed that Saturday seemed aimed at allaying Hong Kongers’ fears about it, or at least facilitating its sale to the public.

These provisions come amid a massive propaganda effort to sell the bill, with signs and advertisements promoting it in Hong Kong, as well as an apparent push by Beijing to re-list Chinese companies on the stock exchange. from the city, boosting the local economy.

In particular, the creation of a panel, nominated by Chief Executive Carrie Lam, to hear national security cases, may have been an annoyance to those expressing alarm at reports that the bill would prohibit judges born in the foreign listen to them. As part of the broader customary law system, which also includes the United Kingdom, Canada, Australia and various other jurisdictions, Hong Kong periodically appoints “non-permanent” distinguished judges to the Final Court of Appeal.

These judges are appointed by the executive director, but their presence in certain cases has been controversial in China, which has led to claims for their removal or prevented certain sensitive cases. By giving Lam the power to nominate judges to hear national security cases, the government essentially avoids this problem, allowing him to choose the judges he considers most loyal.

The Hong Kong Bar Association has criticized the plans as “extraordinary” and a major blow to judicial independence, noting that Lam will appoint a panel to oversee cases in which she is an interested party herself.
Speaking to local media, the director of the Bar Association, Philip Dykes, said the law was a “recipe for conflict of interest” and would allow Lam to “choose” which judges heard the most controversial cases.
Alvin Yeung, a lawmaker and opposition lawyer, said the proposal was “a clear departure from customary law traditions.”

Political prosecutions

Extending the power of the Chinese courts and security services to Hong Kong carries even more concerns.

Allowing China’s security apparatus to operate in the city raises the specter of extralegal persecution. Dissidents and activists in China are often disappeared by the authorities or threatened with arrest for sensitive events, and many journalists and lawyers are dragged to “have tea” with the security services, during which they receive thinly veiled threats about possible consequences of your work.

Meanwhile, granting jurisdiction to Chinese courts “under specific circumstances” will likely guarantee convictions in those cases. China’s legal system has been widely criticized for its lack of protection of human rights, openly political prosecutions, and an almost universal conviction rate. The country’s own national security law has been widely interpreted in the past to imprison activists, intellectuals, and journalists.

Two Canadians prosecuted last week for spying are a pertinent example of this. Michael Kovrig and Michael Spavor were arrested in late 2018, shortly after the arrest in Canada of Huawei executive Meng Wanzhou. While China argues that there is “solid” evidence against the two men, Canada views the case as “arbitrary” and politically motivated.
Kovrig and Spavor are also an example of how national security legislation in China differs from that of democratic countries. Canada, for example, has laws against espionage and espionage, and people have been prosecuted for them.
The difference is that those laws and the corresponding prosecutions must comply with Canada’s Bill of Rights and Freedoms, the country’s bill of rights, and could be repealed if a court determines that they are unconstitutional.
This is not the case in China, and may soon not be the case in Hong Kong, if the bill goes ahead. Although China mentions certain rights in its constitution, these are subordinate to the law, not nullified. Freedom of expression, religion and the press exist in principle, but “cannot violate the interests of the State”.

Similarly, Hong Kong guarantees rights under the Basic Law and by being a signatory to international conventions, but the national security law, as drafted, would void these protections.

Those who try to assert their constitutionally protected rights in China are often prosecuted for national security reasons, such as Nobel Peace Prize laureate Liu Xiaobo, who died in 2017 after years in prison on charges of “inciting to the subversion of state power. ” Liu’s most famous work, Letter 08, of which he co-authored, called in part for judges to “defend the authority of the Constitution.”

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