On Saturday, the Chinese National People’s Congress (NPC), which is expected to pass legislation in the coming weeks, gave Hong Kong a first glimpse of what was inside. Critics might be right to worry: as drafted, the law appears to overturn the city’s valuable independent legal system, allowing Beijing to override local laws while increasing its ability to suppress political opposition.
Most controversially, the law gives Beijing the authority to exercise jurisdiction over certain criminal cases, raising the prospect that for the first time in Hong Kong’s history, suspects can be extradited across the border to face trial, and potentially jail time, on the mainland.
It was only fear that prompted protests against the extradition bill last year proposed by the Hong Kong government. The protests eventually forced the abandonment of the law, but triggered wider anti-government riots which, said Beijing, require the imposition of new national security regulations.
Antony Dapiran, a lawyer and political analyst based in Hong Kong, described the new law as “a broad-based power struggle by Beijing” over many key elements of government and society.
Writing on Twitter, he said the new law “effectively formed a parallel justice (and) took the interpretation and power of the final decision away from the Hong Kong court.”
In a statement, the city’s chief executive, Carrie Lam, said the law would ensure “Hong Kong’s long-term prosperity and stability,” stressing that it would “only target a very small minority of people” and said the proposed bill was “in line with the rule of law “and” the rights and freedoms applicable in Hong Kong under the relevant Basic Laws and international treaties. “
New system
When Hong Kong was handed over from Britain to Chinese government in 1997, the city’s general legal system remained intact. The precedent remains in force, and protection under the new de facto constitution, Basic Law, as well as various international treaties, guarantees a level of justice and freedom not seen in China, where the penalty rate in the north is 90%.
While the NPC did get the ability to “interpret” the Basic Law, basically rewriting it in certain cases, the central government did not have jurisdiction over individual cases, nor could people be tried for crimes against non-illegal Beijing in Hong Kong.
The new national security law will change all that. According to the details published last weekend, China’s security organs will have the power to “exercise jurisdiction” over national security cases “under certain circumstances,” while other prosecutions based on the law will be heard by a panel of judges chosen by the city of Beijing- the leader designated.
It was not explicitly stated whether the suspect could face extradition to mainland China under such circumstances.
Although the draft does refer to the enforcement of “rule of law” and various civil liberties, the bill also subordinates existing laws into the national security bill, so that where there is conflict, national security laws apply. In practice, this could mean that when national security prosecutions conflict with human rights protected by Hong Kong law, those rights are suspended.
Writing after Saturday’s announcement, Jerome Cohen, a Chinese legal expert,
dissolved “eye candy” about human rights, shows that “the very provisions in the draft (law) seem to violate that protection.”
“The surrender has clearly become a takeover,” Cohen added.
Kevin Yam, a lawyer based in Hong Kong and former chairman of the Progressive Lawyers Group,
the word the proposed law does not deserve to be interpreted legally, adding “nothing can be analyzed.”
“Just whatever they say,” he added. “And if they can’t make anything they say is when they want something, they will only change it in whatever way they like.”
Judicial maneuver
Although there was no suggestion for a proper public consultation or referendum on the bill, several provisions revealed on Saturday appeared to be directed
dispel Hong Kong people’s fears about it, or at least reduce its sales to the public.
The provision comes amid massive propaganda efforts to sell bills, with posters and advertisements promoting it plastering Hong Kong, as well as a real push by Beijing for Chinese companies to re-register on the city’s stock exchange, boosting the local economy.
In particular, the formation of a panel, nominated by Chief Executive Carrie Lam, to hear national security cases, may have been of assistance to those who expressed concern over reports that the bill would prevent foreign-born judges from hearing it. As part of a broader general legal system, which also includes the United Kingdom, Canada, Australia and a number of other jurisdictions, Hong Kong periodically designates
Honorable “non-permanent” judge to the Final Court of Appeals.
These judges are appointed by the chief executive, but their presence in certain cases has become controversial in China, leading to calls for their dismissal, or banning them from certain sensitive cases. By giving Lam the power to nominate judges to hear national security cases, the government basically avoids this problem, allowing it to choose the judges who are considered the most loyal.
Hong Kong Bar Association has been
hell the plan was “extraordinary” and was a major blow to the independence of the judiciary, indicating that Lam would appoint a panel to oversee cases in which he himself was an interested party.
Speak to local media, Chair of the Lawyers Association Philip Dykes said the law was “a recipe for conflicts of interest,” and would allow Lam to “cherry pick” in which the judge listens to the most controversial cases.
Alvin Yeung, an opposition MP and lawyer,
the word the proposal was “a clear departure from the tradition of common law.”
Political prosecution
Expanding the power of Chinese courts and security services to Hong Kong also brings growing concern.
Allowing Chinese security forces to operate in cities raises the specter of unlawful persecution. Dissidents and activists in China are often eliminated by the authorities or threatened with arrest around sensitive events, and many journalists and lawyers are dragged to “drink tea” with the security services, where they receive a thin veiled threat about the possible consequences of their work .
Assigning Chinese court jurisdiction “under certain circumstances,” meanwhile, is likely to guarantee sentences in such cases. The Chinese legal system has been widely criticized for its lack of protection of human rights, bare political prosecution, and a nearly universal level of punishment. The country’s national security law itself has been widely interpreted in the past to imprison activists, intellectuals and journalists.
Two Canadians who were prosecuted last week for spying are good examples of this. Michael Kovrig and Michael Spavor were arrested in late 2018 shortly after the arrest of Canadian executive Meng Wanzhou. While China believes there is “strong” evidence against the two men, Canada views the case as “arbitrary” and politically motivated.
Kovrig and Spavor are also examples of how national security laws in China differ from those in democratic countries. Canada, for example, has
opposing law espionage and spies, and people have been prosecuted under them.
The difference is that the law and the appropriate prosecution must comply
Canada’s Charter of Rights and Freedoms, The bill on state rights, and can be destroyed if they are found by an unconstitutional court.
This did not happen in China, and probably will not happen soon in Hong Kong, if the proposal for the law is continued. While China does mention certain rights in it
constitution, this is lower than the law, not ruled out. Freedom of expression, religion and press exist
in principle, but “may not violate the interests of the State.”
Likewise, Hong Kong guarantees rights under Basic Law and by being a signatory to international conventions, but national security law as it is designed will override this protection.
Those who seek to assert their constitutionally protected rights in China are often prosecuted on national security grounds, such as Nobel Peace Prize winner Liu Xiaobo, who died in 2017 after years in prison on charges of “inciting subversion of state power.” Liu’s most famous work, Charter 08, in which he is a joint writer, partly calls for judges to “uphold the authority of the Constitution.”
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