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The National People’s Congress Standing Committee will meet in Beijing between June 28 and 30. Photo: Getty Images

National security law: questions raised over Beijing’s sweeping powers, as critics point to new agency, role of adviser in commission

  • Lawyers argue new agency will have power over Hong Kong leader and cooperation mechanism with judiciary risks dealing a blow to rule of law
  • But advocates say move is necessary as national security issues go beyond the scope of the Hong Kong authorities
Lawyers and critics have questioned Beijing’s sweeping powers in Hong Kong’s new national security law, as they pointed to the provision for a mainland agency in the city and an adviser to a new commission to be led by the city’s leader.

They argued that the agency, to be called the “Office of the National Security Commissioner of the People’s Republic of China in the Hong Kong Special Administrative Region”, would have power over the chief executive, and a cooperation mechanism it must establish with the judiciary risked dealing a serious blow to the city’s autonomy and rule of law.

But pro-Beijing advisers said it was necessary for the central government to set up the dual safeguards – the mainland agency and local commission – as national security issues went beyond the scope of the Hong Kong authorities.

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As news emerged over the weekend that Beijing was likely to pass the law as early as at the end of June, legal scholars and lawmakers alike were trying to decipher the details of the new legislation as provided by a press statement issued by state news agency Xinhua.

On Saturday, Xinhua said that the law would be overseen by a commission led by the city’s chief executive and supervised by Beijing.

Less than 24 hours later, it announced that the National People’s Congress Standing Committee, the country’s top legislative body, would meet again from June 28 to 30. The body had concluded its previous three-day meeting deliberating on laws – including the new national security legislation – on Saturday morning.

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Under Beijing’s plan, the agency would be formed to “monitor, supervise, coordinate and support” the local administration in defending national security, according to Xinhua. It should establish a mechanism with the local enforcement and judicial departments that were tasked with safeguarding national security, to strengthen the sharing of information and cooperation, a draft of the law said.

Johannes Chan Man-mun, former law dean at the University of Hong Kong, said the move was alarming.

“The word ‘supervise’ on the mainland is beyond giving advice. It is about giving advice that I expect you to follow, and you simply cannot disobey in theory,” Chan said. “So, it is like setting up a body beyond the chief executive. How can Hong Kong retain a high degree of autonomy?”

Critics are worried Hong Kong will lose its high degree of autonomy. Photo: K.Y. Cheng

A mainland source said the office would be of vice-ministerial level and report directly to the Central National Security Commission of the Communist Party, which is led by President Xi Jinping.

The source added that later this month the Politburo Standing Committee would name a senior security official as Beijing’s national security commissioner in Hong Kong.

Tam Yiu-chung, the city’s sole deputy to the Standing Committee, added the new agency was not bound by Article 22 of the Basic Law – which states no central government department may interfere in the city’s affairs – as it would be directly reporting to Beijing.

The new law, which the National People’s Congress voted to adopt in May, would prohibit the crimes of secession, subversion, terrorism and collusion with foreign and external influences to threaten national security.

Hong Kong leader’s power to choose judges in security law cases sparks concern

Anita Yip, vice-chairwoman of the Hong Kong Bar Association, warned the cooperation mechanism would hamper the city’s judicial independence.

“Our judicial system has always been independent. How can a judicial department cooperate with the executive branches in action? That’s troubling and I cannot see why people tell us not to be worried,” Yip said.

Hong Kong’s leader would have the right to appoint former or incumbent judges, meaning foreign ones would not be expressly ruled out as was previously feared. But critics said the unusual power would diminish the rule of law, with Chan and Yip both saying it was tantamount to having the prosecution handpick judges.

Johannes Chan says the word ‘supervise’ on the mainland goes beyond giving advice. Photo: Felix Wong

“That is obviously an administrative intervention in the judicial system,” Yip said. “This will also deal a serious blow to the perception of judges’ independence, as everyone will wonder why certain ones are picked to try certain cases.”

Bar Association chairman Philip Dykes said the mechanism could risk turning the judiciary into a branch of the government in the way courts were set up on the mainland.

“It goes against our understanding of what the judiciary does,” he said, adding that Hong Kong courts were considered to be independent.

When dealing with cases concerning national security, some state secrets will be viewed. It is very reasonable for Beijing to play a role through the chief executive
Thomas So, former Law Society president

But Thomas So Shiu-tsung, a former president of Hong Kong Law Society who sits on China’s top advisory body, the Chinese People’s Political Consultative Conference, said it was reasonable for Beijing and the chief executive to have a say on the judges.

“When dealing with cases concerning national security, some state secrets will be viewed. It is very reasonable for Beijing to play a role through the chief executive,” he said.

Separately, a source familiar with Beijing’s thinking also dismissed suggestions that judicial independence would be undermined.

“The chief executive will only be required to designate a group of judges to hear national security cases, not to designate judges for a particular case,” the source added.

Elsie Leung says Hong Kong judicial independence will not be affected even if the city leader has the power to appoint a judge to deal with national security matters. Photo: Xiaomei Chen

Elsie Leung Oi-sie, a former vice-chairwoman of the Basic Law Committee, also brushed off such concerns.

“Judicial independence only means a hearing should not be interfered with,” she said.

“National security involves specific knowledge, and the information [shared in the commission] is not known by all judges and ordinary people. So, [the arrangement] is more about professionalism than political screening.”

She said the role of the person appointed by Beijing on the national security commission led by the chief executive would remain advisory. Opposition lawmakers had poured scorn on the idea, claiming that an adviser on any mainland body would be a party secretary with complete authority.

“The role is to give an opinion … of course, the opinion of the adviser should be respected. But in any case, he should not be able to directly order the commission on how to work,” Leung said.

But she added that the commission would be accountable to the central government and the adviser would report to Beijing if his or her opinion was not adopted.

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Executive Council member and barrister Ronny Tong Ka-wah said it was necessary to have both the Hong Kong leader’s commission and the mainland agency.

Macau’s leader set up such a commission in 2018, but Beijing has yet to appoint an adviser to sit on it nor has it established a national security agency in the casino hub.

Tong said it was reasonable for the agency to be set up in Hong Kong considering the more complicated issues in dealing with foreign forces than in Macau.

“Some may view them as two fuses, but I think they are necessary … as national security is at stake, and the intelligence and experience required could be beyond the city government’s capability,” he said.

Additional reporting by Chris Lau and William Zheng

This article appeared in the South China Morning Post print edition as: Wide powers of new Agency trigger Alarm
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