Truth of Hong Kong’s national security law will prevail over fog of Western criticism
Much of the criticism is not based on a careful reading of the law, and does not give credit to the professionalism of the Hong Kong law enforcement and judicial authorities who will be the ones to enforce the law and adjudicate on it
The ‘one country, two systems’ framework will not collapse simply on the Western world’s say-so
An American law professor recently wrote an article about the Hong Kong national security law where he examined almost every article, and concluded in these words: “I wasn’t going to pay much attention to the substantive crimes and their definition … It’s the institutions and the processes that count … This whole law is about avoiding the involvement of such institutions.”
One article he did not refer to is Article 8, which provides that “the law enforcement and judicial authorities of the Hong Kong special administrative region shall fully enforce this law and the laws in force in the region concerning the prevention of, suppression of, and imposition of punishment for acts and activities endangering national security”.
In fact, the law is being enforced by the law enforcement and judicial authorities of the Hong Kong SAR. So what institutions are the professor saying had been “avoided” by the law? Or is he saying all Hong Kong institutions are bogus?
I mention this article because it is indicative of the attitude in general of Western governments and media in relation to the national security law: words in the law do not matter; constitutional and institutional safeguards for human rights do not matter; that many countries around the world have a national security law do not matter; what matters is it is China doing it.
02:13
Beijing’s passage of national security law for Hong Kong draws international criticism
Beijing’s passage of national security law for Hong Kong draws international criticism
Since it is China, all safeguards and references to the rule of law must be a lie. And in this regard, no distinction is to be drawn between mainland courts and Hong Kong courts.
By now, you must think I am biased, or worse. How could I disagree with all the Western countries speaking in one voice, that China is in breach of the Sino-British Joint Declaration, and that Hong Kong is losing its autonomy? But the joint declaration does not address China’s national security.
First, the joint declaration made no mention of full autonomy but a “high degree of autonomy”. Is anyone seriously suggesting that, by granting a high degree of autonomy to Hong Kong, China has somehow lost its power to safeguard itself? That Hong Kong and not the country it belongs to has the exclusive power to legislate for the whole of China when it comes to matters of national security? So that, if Hong Kong is unable to do it, then China will just have to accept it will be forever at risk?
Most importantly, we are talking about the security of the entire nation, not just that of Hong Kong. So why does China as a nation not have a say?
05:50
What you should know about China's new national security law for Hong Kong
What you should know about China's new national security law for Hong Kong
Critics accuse China of being in breach of the joint declaration by forsaking the freedoms and core values of the people of Hong Kong. But the Basic Law guarantees these rights and values. Article 39 specifically provides that the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights apply to Hong Kong.
Furthermore, Article 4 of the national security law reiterated the importance and applicability of the Basic Law as well as the two said international conventions. Article 5 of the law also provides that rule of law principles must be observed and all accepted rights of a defendant under the law are to be respected.
But to critics like the American law professor, the words and provisions do not matter because it is China we are talking about. But we are actually talking about Hong Kong because it is the SAR law enforcement and judicial authorities, both generally regarded as one of the finest in Asia, if not the world, that will be enforcing and adjudicating on the law.
Of course, some critics counter that Hong Kong courts now cannot be trusted because the chief executive gets to choose who will try these cases. But Hong Kong judges are appointed based on the recommendations of an independent committee that typically includes representatives recommended by the Bar Association and Law Society.
Article 44 of the law further provides that before nominating judges specially tasked to try offences under the national security law, the chief executive could consult the chief justice, and the chief executive has already said that she would consult the chief justice.
01:09
Hong Kong needs Beijing approval to handle national security law cases in three situations
Hong Kong needs Beijing approval to handle national security law cases in three situations
By insisting that such an arrangement would erode the independence of our judges, critics are insinuating that those nominated judges, including eminent judges of the highest calibre and reputation in the world, are all susceptible to being bought by Beijing. All without a shred of evidence.
At the end of the day, the proof of the pudding is in the eating. After the passing of the law, we see no massive arrests of civilians or foreigners in Hong Kong, no shutdown of media, no person arbitrarily detained because they continue to vilify the SAR as well as the central government. In truth, we see Hong Kong people continuing with their daily life, just as usual.
The “one country, two systems” framework will not collapse simply on the Western world’s say-so. In a way, it is true that words do not matter; what matters is that truth will always, eventually, prevail.
Ronny K.W. Tong, QC, SC, JP, is a former chairman of the Hong Kong Bar Association, a member of the Executive Council and convenor of the Path of Democracy
