The new national security law has 66 articles and is harsher in tone and substance than most people expected. Its terminology, in places, lacks the precision one finds in common law statutes. It leaves much room for judicial interpretation and it creates a dynamic tension between its own wording and that of Hong Kong’s Basic Law. This is likely to create particular challenges for the Hong Kong courts when dealing with enforcement. The central government’s Office for Safeguarding National Security in Hong Kong has a wide role to play, such as “collecting and analysing intelligence and information concerning national security”. But it also has a less-well-defined function: “overseeing, guiding, coordinating with and providing support to the [SAR] in the performance of its duties for safeguarding national security”. Hence the crucial question is: has the office been given executive powers exercisable within Hong Kong’s justice system? Article 49(4) says that the office’s mandate includes “handling cases concerning [an] offence endangering national security in accordance with the law”. The expression “handling cases” is amorphous. If it meant, for instance, prosecuting offenders in Hong Kong’s courts, that would be contrary to the general principles set out in Article 1 of the law and would set up a clash with the Basic Law. Leaving aside these reservations, one sees at the outset the statement of general principles. Article 1 says the purpose of the law is to ensure “the resolute, full and faithful implementation of the policy of ‘one country, two systems’ under which the people of Hong Kong administer Hong Kong with a high degree of autonomy”. The last stated general principle is “protecting the lawful rights and interests” of Hong Kong residents. These statements of principle inform all the following articles – including Article 49(4). Except in a very narrow category of cases, the entire process of investigation, prosecution and trial of cases under the new law is in the hands of the Hong Kong authorities. This law is not concerned with crimes against the person or property as such. A case of arson, damage to public property, attempted murder or inflicting grievous bodily harm alone would not be processed under this law, unless it can be shown to damage national security – a much wider offence. Police cite security law in arresting activist on Yuen Long attack anniversary The crimes of secession, subversion, terrorism and collusion with foreign entities are aimed at the state. These are very serious crimes attracting long prison terms. A prosecution is not to be lightly undertaken. To charge a person under the new law, the written consent of the secretary for justice is required. The notion that a young man doing nothing more than waving a banner in the streets could be prosecuted and convicted under this law is absurd, whatever that banner might say. While instances of arson, damage to public property, taking part in a riotous assembly, waving a banner, would not on their own come under the new law, they might constitute evidence of a more serious crime, such as a conspiracy to bring destruction to Hong Kong: this would, of course, be a crime against national security. Article 55 of Chapter V of the new law, which deals with the Office for Safeguarding National Security, has aroused much hostile comment. It deals with three very narrow categories of cases where, on the initiative of the office, the prosecution takes place on the mainland before a court designated by the Supreme People’s Court. Investigation having been initiated by the office in Hong Kong, “legal documents” issued by the mainland authorities “shall have legal force” in Hong Kong. Legal experts see pitfalls in long arm of Hong Kong’s national security law Assume, for instance, that the mainland court issues an order that a suspect, residing in Hong Kong, be taken into custody and be transferred to the mainland for trial. The Hong Kong police is duty-bound to enforce the order; the suspect is taken into custody pending transfer to the mainland. The suspect is entitled to have legal representation from the outset. Assume that the lawyer immediately takes out a writ of habeas corpus requiring the police to show cause why the defendant should not be released. Would it suffice for the police to simply produce the mainland court order? If, on the face of the court order, the alleged crime clearly falls outside the three categories of cases under Article 55, can the Hong Kong court order the suspect’s release? This is a grey area, for Article 28 of the Basic Law is quite clear: “The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment.” Assume, for instance, that the prosecution is based on Article 55(1): “the case is complex due to the involvement of a foreign country or external elements, thus making it difficult for the Region to exercise jurisdiction over the case”. Whether there is “involvement of a foreign country or external elements” is a plain matter of fact. If there is none, surely, by any standards, the entire process initiated by the Office for Safeguarding National Security is unlawful. Britain suspends Hong Kong extradition treaty over national security law But Article 60 says “t he acts performed in the course of duty” by the Office for Safeguarding National Security and its staff “in accordance with this law shall not be subject to the jurisdiction of the Hong Kong Special Administrative Region”. This immunity is confined to acts performed by the office. It says nothing about acts of a mainland court. Here, then, is an example of the dynamic tension between the processes under the new law and the Basic Law which Hong Kong courts may be required to resolve: upon that resolution will depend the direction in which the principle of “one country, two systems” is tilted. Finally, Article 65 says “the power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress”. Five Hongkongers tell the Post why they have chosen to start over abroad But, in the example given above, it is not a question of interpreting the new law. The law is clear enough: a prosecution under Article 55(1) involves either a foreign country or external elements. Without such factors, the legal foundation for prosecution is gone. Nothing in the new law suggests that arbitrary prosecution or arrest is lawful. The principle of “one country, two systems” is a living concept. It evolves with changing times. What the Hong Kong judiciary is called upon to do, in effect, is to calibrate the system so that it comfortably accommodates Hong Kong cultural values with national aspirations. This requires great sensitivity. No wonder the new law has conferred additional responsibilities on the chief executive in Article 44. This article has aroused much controversy. It requires the chief executive to designate, in effect, a new panel of judicial officers – from magistrates up to the judges of the Court of Final Appeal – to handle cases concerning offences endangering national security. The term of office is one year – necessarily short, as this is an innovation. Critics have said that this interferes with judicial independence, a much misunderstood concept. It has everything to do with the exercise of judicial power, and nothing to do with the institution of the judiciary as such. The judiciary does not stand apart from the other major organs of government. As Jonathan Sumption, former English Supreme Court judge, puts it in Trials of the State : “It is a vice of lawyers that they think and talk about law as if it was a self-contained subject, something to be examined like a laboratory specimen in a test-tube. But law does not occupy a world of its own. It is part of a larger system of public decision-making. The rest is politics: the politics of ministers and legislators, of political parties, of media and pressure groups and of the wider electorate.” To reshape the function of the judiciary, to better accommodate it to the larger system of public decision-making, is an act of government. It has nothing to do with judicial independence. Basic Law Article 85 makes this clear: “The courts of the Hong Kong SAR shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.”. As the chief justice pointed out , all judicial officers, past and present, have taken the judicial oath and been appointed based on their judicial and professional qualities, not based on political considerations. In summary, the declared aim of the new law is to strengthen the application of “one country, two systems” in Hong Kong. This leaves the possibility – or, perhaps, more than the possibility – that the policy will endure long after 2047, with the common law as the governing system for Hong Kong during the lifetime of the young people living today, and beyond. For this, the common law must be seen to act effectively in coping with problems as events evolve. Hence, the judicial officers selected to be on the Article 44 panel have a huge responsibility. Upon their shoulders may well rest the long endurance of one country, two systems in Hong Kong. Henry Litton is a retired Court of Final Appeal judge and author of “Is the Hong Kong Judiciary Sleepwalking to 2047?".