Opinion | Will Hong Kong’s rule of law survive the challenge of Beijing’s national security legislation?

Name: How China is drafting a new Hong Kong national security law at the National People’s Congress
Uploaded: 2020-05-28T01:00:07.000Z
Duration: 2 min 17 s
Description: How China is drafting a new Hong Kong national security law at the National People’s Congress

From its process of enactment – apparently bypassing the local legislature and ignoring public opinion – to its future implementation and enforcement, the law is incompatible with the city’s common law tradition

Hong Kong’s courts will be severely tested in trying to uphold the rule of law

Reading Time:4 minutes

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Michael C. Davis

Published: 9:00am, 28 May 2020Updated: 9:47am, 28 May 2020

With the expected passage of the National People’s Congress resolution on national security this week, mainland and Hong Kong officials assure us that the proposed law will be narrowly drafted and pose no threat to basic freedoms and the rule of law in Hong Kong. This assurance should be doubted.

The claim that public officials are reliable people who will only go after the bad guys underlies the People’s Republic of China’s tradition of rule by law. It presumes that a society of laws is one where officials issue the right directives and everyone else is bound to follow them. Such use of law as only an instrument of control is not the rule of law as known in Hong Kong.

Rather, the rule of law primarily aims to maintain public order by ensuring that officials comply with properly enacted laws in carrying out their duties. For common law Hong Kong, under the Basic Law, such laws should be the product of a proper legislative process with enforcement and oversight in the ordinary courts.

This is not what is envisioned with regard to the proposed national security law. The NPC resolution runs afoul of a number of Basic Law requirements. First, the process of enactment raises grave concern. The NPC has directed this mainland-drafted national security law be added to Annex III of the Basic Law and then directly promulgated for application in Hong Kong.

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How China is drafting a new Hong Kong national security law at the National People’s Congress

The central government claims that the local disorder on the streets associated with the protests represents a threat to national security. Its decision to take matters into its own hands runs afoul of the requirement in Basic Law Article 14 that, “The government of the Hong Kong Special Administrative Region shall be responsible for the maintenance of public order in the Region”.

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