Some Hong Kong officials tried to allay those concerns, despite admitting that they had not yet seen a draft of the law, which was written behind closed doors in Beijing. However, with the full text of the law finally available for dissection, several legal experts have confirmed their worst fears.
Since its surrender to China in 1997, Hong Kong has maintained the customary law system inherited from the territory’s 150 years under British colonial rule. Its independent judiciary and strong rule of law have long been seen as key to the city’s success as a global financial center.
Officials from Hong Kong and Beijing argued that the law is necessary and overdue, and promised that it would only affect a small minority of Hong Kong people, while bringing “stability and prosperity” back to the city.
“The national security law is a crucial step in ending the chaos and violence that has occurred in recent months,” Carrie Lam, the city’s executive director, said on Wednesday. “It is a law that has been introduced to keep Hong Kong safe. The legislation is legal, constitutional and reasonable.”
Chinese officials have emphasized that the national security law is “tailor-made” for Hong Kong, and is different from the Chinese version enacted on the mainland. But in many ways, the legislation still closely resembles.
And with the current law, the city, and its legal system, faces a new reality.
Judicial independence
Zhou even warned judges against the idea of an independent judiciary, calling it a western “trap”.
“We must resolutely resist wrongful influence from the West, such as ‘constitutional democracy’, ‘separation of powers’ and ‘judicial independence’,” Zhou, head of the Chinese Supreme People’s Court, told legal officials in 2017.
Chinese courts, along with prosecutors and police, are overseen by the party’s powerful Central Commissions for Political and Legal Affairs and its local branches, which often call for sensitive political cases such as national security.
“In these cases, the courts and the prosecutor’s offices do not have room to say much,” said Teng Biao, a Chinese human rights lawyer who now lives in the United States. “Everything is controlled by the Communist Party.”
Unlike the mainland, Hong Kong courts operate independently under a common law system similar to that of the United Kingdom and Australia. Under the national security law, the Hong Kong leader will appoint a new panel of judges to handle national security cases, which critics say could allow the government to choose judges sympathetic to particular problems.
“The independence of the judiciary is undermined,” the Hong Kong Bar Association said in a statement Tuesday.
Vague and broadly defined crimes
In China, national security crimes are so loosely defined that authorities have previously used them as a pretext to crush dissidents, imprison democracy defenders, human rights lawyers, social activists, and journalists.
The Nobel Peace Prize laureate, Liu Xiaobo, for example, was sentenced to 11 years in prison for “inciting subversion of state power.” Before his arrest, Liu helped draft a manifesto calling for democracy and political reform in China. He died of liver cancer in custody in 2017.
The four crimes described in Hong Kong’s national security law: secession, subversion of state power, terrorist activities, and collusion with foreign forces to jeopardize national security, are also written in a flexible way.
“They are broadly drawn and … capable of being applied in an arbitrary and disproportionately interfering manner with fundamental rights, including freedom of conscience, expression and assembly,” said the Hong Kong Bar Association.
The crime of secession, he pointed out, can be committed with or without violence, which raises concern if it can prohibit mere speech or any peaceful defense.
Some protesters also chanted slogans in support of independence. In a statement, the police said “it was suspected that they were inciting or inciting others to commit secession and therefore could violate the National Security Law.”
The crimes listed in the new law also have a wide scope: attacking government facilities can be considered subversion, while damaging public transport can be considered an act of terrorism. Both are tactics used by protesters during last year’s pro-democracy protests.
The law also penalizes the theft, espionage, or illegal provision of “state secrets or national security intelligence” to a foreign country, organization, or individual, without specifying what constitutes such secrets or intelligence.
In mainland China, authorities have used a similar crime to attack journalists. In 2015, veteran Chinese reporter Gao Yu received a seven-year prison sentence for “illegally providing state secrets to foreign entities.” She was accused of disclosing so-called “Document No. 9,” an internal Communist Party document that presented her campaign against Western liberal ideas, to a Chinese-language news organization abroad.
Broad powers of secret agencies.
However, it’s not just vague definitions of crime that experts worry about.
Instead, he said, “the key is in the institutions and procedures that the law establishes and empowers.”
The law gives broad powers to two new agencies created to safeguard national security in Hong Kong: a committee chaired by the city’s chief executive and made up of Hong Kong officials, and an office created directly by the Chinese central government.
Under the law, the Hong Kong government’s national security committee will keep its work confidential, and its decisions cannot be legally challenged by a court. The office under the central government enjoys even more freedom. In accordance with the law, in carrying out tasks, the office and its personnel are not subject to Hong Kong jurisdiction, and the Hong Kong police are unable to inspect, search or arrest members of its personnel or vehicles.
“In other words, they are untouchable under Hong Kong law. This is a real Gestapo-level affair,” Clark said, referring to the secret police in Nazi Germany.
Teng, the Chinese human rights lawyer, said the provision echoes the way national security agents operate in mainland China.
“Although they must nominally obey criminal procedural and other Chinese laws, the state security authorities are seldom bound by the courts and only controlled by the Communist Party,” he said.
Under the law, the central government office in Hong Kong can also handle national security cases if they are alleged to involve foreign forces, pose a significant threat to national security, or cannot be effectively handled by authorities. local.
These cases will be handed over to the Chinese authorities on the mainland for prosecution, applying the law and Chinese legal norms.
China’s judicial system has a conviction rate of around 99%, according to legal observers, and has been criticized by human rights defenders and experts for unfair trials, torture and other ill-treatment in custody.
“When the central authorities decide to exercise jurisdiction in a given case, the suspects can be removed for trial in mainland China. This is not extradition, and the usual judicial controls on extraditions appear not to apply,” said the Hong Kong Bar Association. .
“This raises concerns about whether the defendants’ rights to a fair trial will be adequately protected or respected.”
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