The law simply makes a hole, they argue, and is no different from many that other books have in their books. Local officials and reputable companies have thrown their weight behind the bill – unprecedentedly – promising to better leave the city and, in any case, affect a handful of people.
On Saturday, China’s National Congress of Peoples (NPC), which is expected to pass the law in the coming weeks, gave Hong Kong its first look at what it contains. Critics were concerned: as the bill went, the law would boost the city’s esteemed independent legal system, allowing Beijing to override local laws, improving its ability to crack down on political opposition.
Most controversial is that the law gives Beijing the right to exercise jurisdiction over selected criminal cases, increasing the chances that for the first time in Hong Kong history, suspects could be extradited across the border to face trial and, potentially, prison time, on land.
It was fears that triggered protests against the extradition law proposed by the Hong Kong government. These protests eventually forced the law to be abandoned, but plunged into wider anti-government unrest that, Beijing says, requires the imposition of new national security regulations.
, a lawyer and political analyst based in Hong Kong, described the new law as “a wide range of Beijing ‘s power over many key elements of government and society.
Writing on Twitter, he said the new law “effectively establishes a parallel judiciary (and) takes away the possibility of interpretation and final verdict away from Hong Kong courts.”
When Hong Kong was handed over from British to Chinese rule in 1997, the city’s common law system remained largely intact. The precedent remained in place, and protections under the new de facto constitution, the Basic Law, as well as various international treaties, guaranteed a degree of justice and freedom not seen in China, where the conviction rate is north of 90%.
While the NPC gained the ability to “interpret” the Basic Law, essentially revising it in certain cases, the central government had no jurisdiction over individual cases, nor could it prosecute people for crimes against Beijing that were not illegal in Hong Kong.
A new national security law would change all that. According to details released over the weekend, Chinese security authorities will have the power to “exercise jurisdiction” over national security cases “under certain circumstances,” while other lawsuits will be heard by a council elected by the city-appointed city of Beijing.
It is not explicitly stated whether the suspects could face extradition to mainland China in such circumstances.
Although the draft refers to respect for the “rule of law” and various civil liberties, it also subordinates the existing law to the national security bill, so that where there is conflict, the national security law prevails. In practice, this could mean that when the National Security Prosecutor’s Office violates human rights protected by Hong Kong law, those rights are suspended.
Writing after Saturday’s announcement, Jerome Cohen, a Chinese law expert, dismissed
“eye candy” on human rights, emphasizing that “it seems that the provisions of the draft (law) would violate this protection.”
“Surrender has obviously become a takeover,” Cohen added.
Kevin Yam, a Hong Kong-based lawyer and former congress of a group of advanced lawyers, He said
the proposed law was not valid for legal interpretation, adding “there is nothing to analyze”.
“It’s all as they say it is,” he added. “And if they can’t achieve what they say they want when they want something, they’ll just change it in any way.”
Although there was no proposal for a genuine public consultation or referendum on the law, a number of provisions announced Saturday seemed to be aimed at alleviating Hong Kong’s fears about it
or at least facilitate the sale to the public.
Such provisions come as a result of a major propaganda effort to sell the bill, with posters and advertisements promoting it in Hong Kong, as well as apparent pressure from Beijing to re-list Chinese companies on the city’s stock market, boosting the local economy.
In particular, the creation of a panel appointed by CEO Carrie Lam to hear national security cases may have been a bit of a wake-up call to those who expressed alarm in the reports that the law would prohibit overseas-born judges from hearing them. As part of a broader common law system, which also includes the United Kingdom, Canada, Australia and a number of other jurisdictions, Hong Kong periodically appoints eminent “non-permanent” judges
to the Court of Final Appeal.
These judges are appointed by the CEO, but their presence in certain cases in China has been controversial, leading to calls for their removal or a ban in some sensitive cases. By giving Lama the authority to appoint judges to hear national security cases, the government is essentially circumventing this issue, allowing her to select those judges who are considered the most loyal.
The Hong Kong Bar Association has damned
plans as “extraordinary” and a major blow to judicial independence, noting that Lam will appoint a commission to oversee cases in which the stakeholder itself is.
In conversation with local media
, The head of the Bar Association, Philip Dykes, said the law was a “recipe for conflict of interest” and would allow Lama to “pick cherries” that judges have heard of the most controversial cases.
Alvin Yeung, opposition MP and lawyer, He said
the proposal was “a clear departure from the usual legal traditions.”
The expansion of the power of Chinese courts and security services in Hong Kong brings with it even more worries.
Allowing the Chinese security apparatus to operate in the city increases the spectrum of illegal persecution. Authorities often disappear dissidents and activists in China or threaten to arrest them for sensitive events, and many journalists and lawyers are brought in to “take tea” with security services, during which they receive thinly curved threats about the potential consequences of their work.
If Chinese courts have jurisdiction “in certain circumstances,” they are likely to guarantee verdicts in those cases in the meantime. The Chinese legal system has been widely criticized for its lack of human rights protection, bare political persecution, and an almost universal rate of condemnation. National national security law has in the past been widely interpreted as detainees for activists, intellectuals and journalists.
Two Canadians prosecuted last week for spying are a relevant example of this. Michael Kovrig and Michael Spavor were arrested in late 2018 shortly after Huawei CEO Meng Wanzhou was imprisoned in Canada. While China claims there is “solid” evidence against the two, Canada considers the case “arbitrary” and politically motivated.
Kovrig and Spavor are also an example of how national security legislation in China differs from that in democracies. Canada, for example, has laws against
espionage and espionage, and people are prosecuted against them.
The difference is that these laws and the corresponding criminal prosecutions must be in accordance with Canadian Charter of Rights and Freedoms
, rights laws in the state and may overturn them if the court finds it unconstitutional.
That is not the case in China, and soon it will not be the case in Hong Kong, if the bill continues. While China mentions certain rights in it constitution
, they are subject to the law, not decisive. 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 signing international conventions, but a draft national security law would override those protections.
Those trying to exercise their constitutional rights in China are often persecuted for national security, such as Nobel Peace Prize laureate Liu Xiaobo, who died in 2017 after years in prison on charges of “inciting the undermining of state power.” Liu’s most famous work, Charter 08, of which he is a co-author, partly called on judges to “support the authority of the Constitution.”