What will the national security law give Hong Kong, and what will it take?

The way Beijing is rushing through the law – with no real consultation and little transparency – casts a sombre mood over the handover anniversary
The few details known only add fear to the uncertainty. The most worrying features concern the court system – it appears Beijing does not entirely trust the city’s judges

Cliff Buddle

Published: 6:30am, 25 Jun 2020

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Twenty-three years after returning to China, Hong Kong is facing another landmark transition with far-reaching ramifications for its future.

Beijing’s new national security law for the city is expected to be passed on Tuesday, the eve of the handover anniversary. This time, the party atmosphere will be lacking. But the uncertainties and concerns which occupied the minds of Hong Kong people in 1997 have returned.

The manner in which the law is being passed is a timely reminder of the reason the “one country, two systems” arrangements are needed. This complex law, with its potential to curb freedoms, is being passed under the mainland’s system with undue haste and very little consultation in Hong Kong.

It has been less than a month since China’s top legislative body, the National People’s Congress, dropped a bombshell by empowering its Standing Committee to pass the legislation for Hong Kong. The city has, since the handover, been required to pass such legislation on its own, but has not done so.

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A draft of Beijing’s law, which seeks to stop subversion, secession, terrorism and collusion with foreign and external powers, was first considered by the Standing Committee last weekend and is set to be passed at a second three-day meeting starting on Sunday.

There has been no public consultation of the kind we expect in Hong Kong. The full draft of the law is being kept under wraps until after it has been passed. This is unusual, even by mainland China’s standards. Hong Kong is being denied a much-needed opportunity to consider the wording of the law and to provide feedback.

We don’t know what form the four new crimes will take. Incredibly, even Chief Executive Carrie Lam Cheng Yuet-ngor says she has not seen the draft.

This is a dangerous way to proceed. History has shown that the key to governing Hong Kong and ensuring the city’s stability is to rule by consultation and consent. The new law has been presented as a necessary step after months of civil unrest and violent protests in the city.

But it was the failure by Lam’s administration to consult properly on a controversial extradition bill, since withdrawn, allowing suspects to be transferred for trial on the mainland that helped fuel the anti-government backlash.

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Officials have sought to explain the law to representatives from various sectors. We may learn more in the coming days. But without sight of the full draft, it is impossible to understand how the law will be implemented and what impact it will have on Hong Kong’s way of life.

A summary of the draft, published in state media on Saturday, raises more questions than it answers.

It revealed that the chief executive will head a new national security commission in Hong Kong, supervised by Beijing, to oversee enforcement of the law. A central government adviser will sit on the commission. Beijing will also set up a national security commissioner’s office in the city.

The division of power and precise roles played by these new bodies is unclear. It is difficult to see how their introduction will not further limit Hong Kong’s autonomy.

The most worrying features of the impending law concern the court system. It appears Beijing does not entirely trust the city’s judges. The chief executive is to be given the power to select serving or former judges to sit on national security cases.

This will flagrantly undermine the independence of the judiciary. Hong Kong’s judges are appointed by the chief executive, but on the recommendation of an independent commission. It is for the judiciary – not the government – to decide which judges sit on particular types of cases.

Allowing the chief executive to make the choice is like allowing one national football team to pick all the referees for the World Cup. National security cases will be prosecuted by the government. The chief executive, therefore, has an interest in these cases.

Hong Kong Chief Executive Carrie Lam attends a press conference in Hong Kong on June 23. Since national security cases will be prosecuted by the government, allowing the chief executive to select judges for such cases would be like allowing one national football team to pick all the referees for the World Cup. Photo: AP

Even if the judges are (as we hope and trust) impartial, there will remain a perception of bias. Lam’s promise to consult the chief justice does not go far enough. If the chief executive must have this power, a suggestion from former chief justice Andrew Li Kwok-nang should be adopted. Hong Kong’s leader should act on the advice of the existing, independent, appointment panel, the Judicial Officers Recommendation Commission.

One of the biggest worries for Hong Kong people is that the law will allow some cases to be tried by mainland authorities rather than the city’s courts. We are assured this will only apply in a very small number of exceptional cases.

The Basic Law, Hong Kong’s de facto constitution, keeps the court systems on either side of the border completely separate. This was done to ensure people in Hong Kong could feel safe in the knowledge that, if they find themselves in court, they will be tried according to the city’s common law system with all its fair trial guarantees.

Allowing even a small number of cases to be tried on the mainland alters that fundamental position. If this is to happen, the circumstances in which it is to be permitted must be crystal clear. Will there be a role for Hong Kong courts in deciding whether a case is to be tried on the mainland?

The concern is that Beijing will reach in for certain prime suspects, sending them for trial on the mainland where Hong Kong’s safeguards do not exist.

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Promises have been made that the law will safeguard the city’s freedoms and respect human rights standards. But this can only work if Hong Kong’s courts are free to apply those standards and their decisions are respected.

The idea that some decisions may be reversed by Beijing and that the Standing Committee reserves the right to interpret the security law suggests there will be limits on the ability of the courts to protect rights in the usual way.

One potential safeguard is Hong Kong’s jury system. The security cases will, no doubt, carry heavy prison terms. Most cases are, therefore, likely to end up before a jury. The jury system has long acted as a check and balance on the power of the authorities in common law jurisdictions.

Juries have, at times, acquitted defendants in cases which they feel are oppressive or political – even if the evidence and the directions of the judge point to a guilty verdict. It will be fascinating to see how the city’s jurors respond to the sensitivities of national security cases.

The law is anxiously awaited in Hong Kong. Its passing has been described as the city’s second handover. Precisely what is being handed over this time is not entirely clear. Hopefully, it will not be Hong Kong’s high degree of autonomy, rule of law and treasured freedoms.

Cliff Buddle is the Post’s editor of special projects

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