Hong Kong should fulfil its legal obligations to China to better safeguard its own freedoms

Grenville Cross says it’s time for the city’s secretary for justice to tackle several thorny issues that have strained Hong Kong-mainland relations – border control arrangements for the high-speed railway, national security legislation and cross-border legal cooperation on criminal matters

PUBLISHED : Tuesday, 04 July, 2017, 11:46am
UPDATED : Tuesday, 04 July, 2017, 8:12pm

Dear Secretary for Justice, Please accept my congratulations on your reappointment. Although you will, reportedly, not see out your term, long-standing mainland issues now require your urgent attention.

You are, of course, already closely involved in the co-location issue. The proposed presence of mainland officials at the West Kowloon terminus, to conduct checks for the new cross-border express rail link, is clearly based on sound, practical considerations. We all want this remarkable project to succeed, and similar arrangements work well in other parts of the world. You must not be deflected from taking sensible decisions on this innovative scheme by the short-sightedness of some legislators.

Hong Kong leader Carrie Lam calls for national security law push, but no clear time frame

Your biggest challenge, however, will be to promote the early implementation of national security laws. The Basic Law’s Article 23 requires Hong Kong to prohibit treason, secession, sedition or subversion against the central people’s government, and our government must finally demonstrate its bona fides.

If, 20 years after reunification, nothing is done, it will tell the rest of China not only that Hong Kong cannot be trusted to honour its Basic Law obligations, but also that its government is impotent.

Although your predecessor, Wong Yan-lung, did nothing on Article 23 during his seven years in office, content to pass this hot potato on, you must not emulate his example.

Hong Kong does need to revisit Article 23 – not to criminalise calls for independence, but to modernise our outdated sedition laws

Beijing, of course, attaches great importance to combating subversion and preventing secession, and warning shots have already been fired. In May, for example, the chairman of the National People’s Congress Standing Committee, Zhang Dejiang (張德江), denounced those who seek to sever Hong Kong from China. He said Hong Kong should “steadfastly implement the constitutional obligation of national security under the Basic Law”, and you disregard Beijing’s concerns at our peril.

It is an affront to the nation that people convicted of serious crimes elsewhere in the country can live with impunity in Hong Kong

Treason and sedition are already on the statute book, which should ease your task. If you can, in a measured way, introduce subversion and secession laws which – while criminalising the pursuit of objectives through the use of violence, force or other serious unlawful means – are respectful of freedom of expression and peaceful advocacy, then you will deserve public gratitude.

If, however, you do nothing, and the central authorities, out of frustration, simply impose China’s own draconian national security law on Hong Kong, as is their right, you will have undermined our autonomy and freedom, and done us all a huge disservice.

Two decades after reunification, moreover, legal cooperation in criminal matters between Hong Kong and the rest of China has also not progressed at all, and you must act. Although the Basic Law’s Article 95 enables legal bodies to “render assistance to each other”, law enforcers still have to rely on informal colonial-era administrative arrangements, only intended as a stop gap, to obtain help to pursue criminals. This is no longer acceptable, and Hong Kong must pull its weight by contributing positively to effective law enforcement throughout the country.

Carrie Lam must seek real progress on fugitive-rendition agreement with mainland China

It is, for example, an affront to the entire nation that people convicted of serious crimes in courts elsewhere in the country can, in the absence of a rendition of offenders agreement, live with impunity in Hong Kong. Although the mainland provides our law enforcers with great assistance, and returns fugitives, Hong Kong does not reciprocate, and at some point Beijing’s patience may snap.

Hong Kong justice chief warns cross-border legal links can’t be rushed

I therefore urge you to get serious about combating cross-border crime, before mainland law enforcers are tempted, for example, to use irregular means to bring suspects back to face justice. Some people, of course, fear that this has already happened, and further delay by you is no longer an option.

If you can make solid progress in all these areas, you will not only have promoted the success of “one country, two systems”, but also have helped to secure Hong Kong’s future in the run-up to 2047. This will not be easy, but big achievements rarely are. Please persevere.

Grenville Cross SC is a criminal justice analyst