Beijing reserves right to handle ‘rare’ cases involving Hong Kong’s new national security law
- But direct control expected to be utilised in ‘very, very few’ instances, according to Hong Kong and Macau Affairs Office deputy director Deng Zhonghua
- Deng also stresses that new mainland security office in city is an ‘unequivocal demand’ of the government and will ‘supervise’ enforcement of the new law
Deng Zhonghua, deputy director of the cabinet-level Hong Kong and Macau Affairs Office, stressed at a seminar in Shenzhen on Monday that such cases would be rare, and they would still be prosecuted according to the rule of law as upheld in Hong Kong.
In a further bid to ease persisting fears, he said while there were differences between the legal systems of Hong Kong and mainland China, both jurisdictions observed similar principles such as the presumption of innocence, proportionality between offences and penalties, and no retroactive effect.
But opposition lawmakers questioned what the exceptional cases Deng was referring to would be, raising fears that the law could be used to persecute Beijing’s critics and even have them tried across the border.
Deng’s statement marked the first time a mainland official has provided details of the framework of the new law, which is expected to be passed by the National People’s Congress (NPC) Standing Committee, the country’s top legislative body, as early as the end of this week.
The NPC, China’s parliament, gave few details when it passed a resolution on May 28 authorising the Standing Committee to draft a law for Hong Kong that would outlaw acts of secession, subversion, terrorism and foreign interference in the city’s affairs.
“In Hong Kong, the Hong Kong government will shoulder the major responsibility of safeguarding national security. The absolute majority of relevant works should be and must be carried out by the Hong Kong government,” Deng said.
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“But under very special circumstances, the central government retains jurisdiction over some cases involving criminal acts that seriously endanger national security.”
Deng stressed that even though the central government would retain jurisdiction in select cases, it would not have a broader effect on the independence of the city’s judiciary.
“[The central government’s jurisdiction over such cases] will not affect the independent judicial and final adjudication enjoyed by Hong Kong in accordance with the Basic Law,” he said, referring to the city’s mini-constitution.
Under the legislation, the Hong Kong government is required to set up new institutions to safeguard national security and also allow mainland agencies to operate in the city “when needed”.
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The law has triggered widespread concern it could effectively criminalise dissent and opposition activity, although the government has offered repeated reassurances it will only target a small, criminal minority.
The possibility of mainland agents playing a role in enforcing the law has sparked further concerns.
Deng emphasised that the establishment of a mainland national security agency in Hong Kong was the “unequivocal demand” set out in the NPC’s decision on the law.
During the seminar, organised by semi-official think tank the Chinese Association of Hong Kong and Macau Studies to mark the 30th anniversary of the promulgation of the Basic Law, Deng said the central government had to have “actual levers” for exercising its jurisdiction over national security cases so as to produce deterrent effects.
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“We can’t just chant slogans or do some charade,” he said.
Deng said the national security agencies, set up by both Hong Kong and the central government, had to be granted the necessary power to enforce the new law.
“The mainland agency should establish mechanisms to coordinate with its counterpart in Hong Kong,” Deng said. “It will supervise and guide the Hong Kong government in safeguarding national security in the city.”
He said any mainland agents operating in the city would abide by Hong Kong law, adding that such principles as the presumption of innocence, procedural justice and proportionality between offences and penalties could be stipulated in the legislation.
Responding to Deng’s remarks, opposition lawmaker Dennis Kwok accused Beijing of being deliberately vague.
“Under our common law principles, the law must be certain and clear, there can’t be that many exceptional circumstances,” said Kwok, of the Civic Party. “I think this is further clear evidence that they are using this law to quash political opposition.”
Kwok said Article 19 of the Basic Law already stated that Hong Kong courts had no jurisdiction over cases concerning China’s defence and foreign affairs, and he questioned what further exceptions Deng could be referring to. He also suggested Beijing could be alluding to bringing suspects in national security cases to the mainland for trial.
Civic Party leader Alvin Yeung Ngok-kiu accused Beijing and Hong Kong officials of being irresponsible for making comments on the new law while refusing to make relevant clauses public at the same time.
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Bar Association chairman Philip Dykes said Deng’s statement that Beijing would have jurisdiction over some national security cases could mean suspects would be tried on the mainland, but added it was all speculation until Beijing published the text of the new law.
In such instances, Dykes said, the relevant cases would be taken out of Hong Kong’s common law legal and procedural system.
“Officials can say it won’t affect the Hong Kong court’s power of final adjudication because it may mean they [suspects] are never tried under our legal system,” Dykes said.
Simon Young Ngai-man, a law professor at the University of Hong Kong, said it would not be controversial if what Deng meant was having the mainland assume control in cases that touched on its territorial jurisdiction.
What Deng had left unspoken, Young said, was whether assuming jurisdiction could mean the possible extradition of Hong Kong permanent residents to the mainland for trial, or taking direct control of cases that took place wholly within the city, which he warned would be controversial.
Additional reporting by Sum Lok-kei