Opinion

by Henry Litton

Opinion

by Henry Litton

Why Beijing’s national security law for Hong Kong deserves the full support of the judiciary and lawyers

The fact that reform is deemed necessary to improve Hong Kong’s legal system and ‘enforcement mechanism’ should serve as a wake-up call for the legal profession
The common law is at the heart of ‘one country, two systems’ and there is no reason the principle should not continue beyond 2047 if it is in tune with broader national interests

Henry Litton

Published: 6:30am, 1 Jun 2020

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Every nation on Earth, unless a failed state, has laws protecting national security. In Hong Kong, there is a set of laws, inherited from the colonial government, dealing in a haphazard way with some of the complex issues involving national security. These can be found in Part I of the Crimes Ordinance, the Societies Ordinance and the Official Secrets Ordinance.

No one pretends that these laws are anywhere near adequate to deal with the complicated matters today. This problem was recognised by the drafters of the Basic Law: hence Article 23.

This required the Hong Kong government, upon being established on July 1, 1997, to enact laws to prohibit treason, secession, sedition, subversion, and foreign entities forming political alliances with entities in Hong Kong.

An attempt was made by the colonial government, soon before the handover, to ease the task of the future special administrative region government by upgrading the national security laws. This failed to win support in the Legislative Council. The matter was revived in September 2002, when the government issued a consultation document on proposals to implement Article 23.

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What should have happened following the publication of the consultation paper was mature debate within the community. Regrettably, leaders in the community who claimed to represent the people adopted an ideological stance, claiming the proposal was an attack on Hong Kong’s autonomy.

The result was that the National Security (Legislative Provisions) Bill, introduced in Legco in February 2003, was withdrawn, leaving the ramshackle colonial laws as a defence against attacks on national security.

As things stood at that time, the world was relatively peaceful. The constitutional need in Hong Kong to implement Article 23 was held in abeyance, through two successive changes in the post of chief executive.

The world scene has since totally changed. The tension between nations has vastly increased, with the threat of trade war and cyberwar possibly escalating into open conflict. Naval clashes in the South China Sea are regarded as a real possibility.

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In these circumstances, the need to upgrade and improve upon national security laws seems common sense. And herein lies the crux of the problem facing Hong Kong today, which has attracted, once again, worldwide attention.

And, as usual, the media has immediately danced to the tune of sound bites, not having the time to study the issues in depth: answering to the exigencies of the daily news cycle. Who, reporting on the issues of today, has read the government’s consultation document of September 2002?

The truth is that since last October, the Hong Kong legislature has been dysfunctional. Except for matters of finance, it has ceased to operate as a legislature. An incident in the Legco chamber on May 18 says it all: councillors brawling like children in a playground – a photo flashed worldwide showing a member screaming and kicking, being forcibly removed from the council chamber.

Have those reporting on the incident reflected on its deeper significance, beyond a shameful episode in a troubled land?

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What it means is that no law can be passed in Hong Kong. Meanwhile, internal security has worsened, with increasing evidence of terrorist activities aimed at bringing the Hong Kong police to its knees and overthrowing the government.

The anti-government movement seems well-funded and this raises the question as to the source of the funds. Since October last year, a state of grave public danger has existed and been recognised as such by the government. A threat of this nature to Hong Kong – a region of China – clearly constitutes a national security threat.

As former chief executive Tung Chee-hwa said on May 25, as Hong Kong had failed to enact its own security legislation for over 20 years, it has become an easy target for hostile foreign opportunists to disrupt public order, using Hong Kong in effect as a proxy for a wider power conflict.

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What then, should a national government do, given that the SAR government has, in effect, become powerless? The answer is the proposal approved by the National People’s Congress: to enact by promulgation for the protection of Hong Kong and the nation.

The decision emphasises the cardinal policies that lie behind the proposal: “one country, two systems”, Hong Kong people governing Hong Kong, and a high degree of autonomy for the SAR.

When passed, the laws will be enforced by Hong Kong courts exercising jurisdiction under the common law system, a system based on the presumption of innocence, and proof of guilt beyond reasonable doubt. Allied with this are the rules which emphasise that prejudicial evidence not directly relevant to guilt must be excluded.

The explanatory document issued by the vice-chairman of the NPC Standing Committee contains a warning which the legal profession and the judiciary in Hong Kong should heed: “Efforts must be made at the state level to establish and improve the legal system and enforcement mechanism of the HKSAR’’.

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At the regional level – Hong Kong’s level – the enforcement mechanism has, for all the world to see, also broken down. Unrest and street violence have been going on for nearly a year – dampened to an extent by the overriding crisis caused by Covid-19. Very serious crimes have been committed.

The health crisis only erupted in March. Before then, the courts were capable of functioning normally. Yet, only a handful of people arrested had been convicted, and none for crimes such as attempted murder, grievous bodily harm, arson or criminal damage to transport infrastructure.

What Beijing’s national security law for Hong Kong covers, who should worry?

Bullying tactics have been deployed. Families of police officers have been threatened. Businesses deemed “pro-Beijing” have been vandalised. People have been cowed into silence. And when people see that lawyers as a whole seem sympathetic to the rioters, they get confused. Wherein lie the true values of the Hong Kong community?

The common law lies at the heart of the “one country, two systems” policy, and is the foundation for Hong Kong’s success as a global financial centre. There is no reason such policy should not go beyond 2047 if it harmonises with broader national interests.

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Hence, it is very much in the interests of young lawyers to truly support that policy, to work towards the success of that policy: they will be at the high noon of their professional lives in 2047. And the duty of older lawyers, the leaders of their profession, is to cultivate a climate conducive to their juniors’ success. But is this what they are in fact doing?

Clearly, radical changes at all levels are called for, no less than in the judiciary. The starting point is surely to internalise this key concept: that Hong Kong is a mere region of China. A small dot on the map of China: 7.4 million people in a population of 1.4 billion. Nothing more. To make it more, greater, more influential in the world, it requires nurturing in an authentic way.

It is beyond the scope of this article to go into aspects of reform necessary to “improve the legal system and enforcement mechanism of the HKSAR”, in the words of the vice-chairman of the NPCSC. But those words must surely sound as a wake-up call for the legal profession and the judiciary.

Henry Litton is a retired Court of Final Appeal judge and author of “Is the Hong Kong Judiciary Sleepwalking to 2047?".

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