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Tuesday, Nov 30, 2021

What safeguards are needed for Hong Kong’s new national security law? Who could get caught by it? Legal eagles flag concerns

In the second of a three-part special on Beijing’s move for a new national security law for Hong Kong, we review the legal questions it has sparked. Key issues include scope of new law, definition of offences, which courts will deal with cases and safeguards needed

When China’s parliament endorsed a resolution on Thursday to have a national security law tailor-made for Hong Kong, the broad outlines left several questions unanswered.

The proposed legislation, which could be in place as early as August, is meant to “prevent, stop and punish” threats to national security by outlawing acts and activities of secession, subversion, terrorism and foreign interference in the city’s affairs.

In drafting the new law, Beijing will bypass Hong Kong’s legislature, stating it had given up hope the local government would be able to do so given the deeply divided political environment. The bill will be drawn up and passed by the National People’s Congress Standing Committee before being added to Annex III of the Basic Law, the city’s mini-constitution.

With only scant information available so far, there have been concerns raised in Hong Kong about its impact not only on freedoms enjoyed by residents, but also the workings of the city’s government and courts.

Legal experts and activists in Hong Kong have called for more information and say there are safeguards that need to be put in place. Here are some of the questions raised, what experts say, and what is known so far.

Will mainland Chinese agents enforce the new law, and will they abide by Hong Kong laws?

Once the law is introduced, Hong Kong’s government will have to set up new institutions to safeguard national security, and also allow mainland agencies to operate in the city “when needed”.

The possibility that mainland agents will have a role in enforcing the law has caused disquiet in certain quarters.

A senior legal source was concerned that the agents must abide by Hong Kong laws. “They should not be allowed to engage in operations like wiretapping phone conversations or searching premises unless they get judicial authorisation from the Hong Kong courts,” the source said. “It will be better for the Hong Kong police to enforce the national security law.”

Elsie Leung Oi-sie, former vice-chairwoman of the Basic Law Committee, which advises the national legislature on the city’s mini-constitution, said she expected the agents stationed in the city to be subject to both Hong Kong and national laws.

Referring to the People’s Liberation Army presence, Leung, a former justice minister, said: “Officers of the PLA Hong Kong garrison abide by Hong Kong laws. The situation will be similar for the officers of the mainland’s national security authorities when they work in Hong Kong.”

Professor Fu Hualing, dean of the University of Hong Kong’s faculty of law, said Beijing should let the city’s authorities enforce the new law.

“I hope it will not go so far as to grant mainland agents law enforcement powers,” he said. “Leave the matter to Hong Kong. I hope there is trust in Hong Kong institutions and respect for and deference to Hong Kong’s legal system.”

Fu, whose research interests include legal reform in China and national security legislation in Hong Kong, added: “We have a sound system that can be, and should be, relied on.”

HKU associate law dean Simon Young Ngai-man stressed that the Hong Kong government should be held accountable for the actions of mainland agents.

“We can ask the Hong Kong government to keep records of all the activities of these mainland agents and account to the Legislative Council for those activities as and when required,” he said.

What, exactly, will be outlawed? Can university students hold a forum to discuss independence?

The NPC resolution cites four crimes to be covered by the new law – secession, subversion, terrorism and foreign interference in Hong Kong’s affairs. Critics have been quick to point to the absence of details, expressing fears that vague, broadly defined offences might leave people open to being caught easily for breaking the law.

In 2003, the Hong Kong government introduced a national security bill in an attempt to implement Article 23 of the Basic Law, which calls for such legislation to be enacted in the city. Under that draft legislation, a person would commit the offence of secession if he withdrew any part of China from its sovereignty by “using force or serious criminal means” that seriously endangered the country’s territorial integrity.

The bill was abandoned after an estimated half million Hongkongers took to the streets to protest what they feared would curb their rights and freedoms.

Elsie Leung said one should wait to see the wording of the new law on whether it would be an offence to advocate for Hong Kong independence without taking any action. In a newspaper article she wrote in 2002, she said that “the mere uttering of words and comments without action would not constitute an offence of secession”.

Albert Chen Hung-yee, a Basic Law Committee member and HKU law professor, said he believed that discussing the pros and cons of Hong Kong independence on a university campus would not constitute incitement, a key element in the offence of secession.

Agreeing that holding a forum on Hong Kong independence ought to be acceptable so long as no one advocated for independence, Simon Young said: “It will be useful if the law expressly includes an exemption for legitimate discussion.”

What if the scope of offences in the new law is too wide?

Albert Chen said that when it came to “subversive acts against state power”, the NPC resolution indicated that the new law would include acts of subversion against the Hong Kong authorities, whereas the city’s abandoned 2003 bill referred only to offences against the central government.

He noted too, that the scope of acts and activities constituting “foreign interference” appeared wider in the NPC resolution than under Article 23, which provides for a ban on “foreign political organisations” active in Hong Kong and a prohibition on local groups which establish ties with political bodies overseas.

“Non-political organisations in foreign countries might be targeted by the new national law,” Chen said. “Local organisations receiving donations from some non-political organisations overseas could be caught by the new law.”

Simon Young expected the activities of international non-governmental organisations in Hong Kong to be severely curtailed, even if they acted outside Hong Kong but sent funds to groups in the city.

A senior officer of the Hong Kong branch of an international NGO said: “From the experience in mainland China and other countries like Turkey and India, it won’t be surprising if the Hong Kong government uses the law to arrest NGO staff, suspend NGO operations, label them ‘foreign agents’ or limit their funding.”

Lee Cheuk-yan, secretary general of the pan-democratic Confederation of Trade Unions, feared that his organisation might be charged with “inviting foreign interference” if it sought support from overseas counterparts for local labour groups’ right to collective bargaining.

“The proposed national security law is so broad and Beijing often moves its ‘red line’ based on political needs,” he said. “NGOs and labour unions won’t know when they might commit an offence.”

Lee, who heads the alliance behind the annual June 4 candlelight vigil to mark the anniversary of the Tiananmen Square crackdown in 1989, was also worried that organising the event might be construed as an action that incited subversion of the central government.

Will new law respect established legal safeguards?

Simon Young hoped that certain established elements of Hong Kong’s common law system would not be overlooked when mainland officials drew up the city’s national security law.

These included the use of precise legal language, the requirement of a culpable intent, presumption of innocence and restraint in limiting the laws to their intended purpose in order not to overly encroach on human rights.

“The law should only find people guilty when violent acts are involved, as already suggested by the 2003 national security bill,” he said.

Pointing out that overseas anti-terrorism laws usually had two more safeguards, he said: “One is to have a sunset clause for the legislation to keep the law under review. Two is to have exemptions from crimes or blacklisting for legitimate activity, such as peaceful protests.”

Which courts, which judges, will hear national security cases?

One unanswered question is whether national security cases will go through the Hong Kong judicial system, or go before a special court.

Albert Chen said these cases should be heard by Hong Kong courts. “I hope a special court will not be set up,” he said.

Johannes Chan Man-mun, HKU chair professor of public law, said establishing a special court for national security crimes would affect the integrity of the city’s judicial system.

He asked: “When it comes to criminal offences like arson, or assault, do you deal with it in an ordinary criminal court? Or will the prosecution argue that this is a terrorism offence and therefore it must go before the special court?”

If the latter happened, Chan added, the prosecution could choose which court should hear a case, and there would be further consequences.

“If the special court does not operate in the same way – if cases cannot be taken to the appeal courts, for example – there will be a big question mark about fair trial,” he said.

Macau, China’s other special administrative region, passed its national security legislation in 2009. Its Legislative Assembly passed a bill last year to stipulate that all cases involving national security would be tried only by local judges of Chinese nationality.

Asked about media reports suggesting that Beijing would similarly bar Hong Kong judges of foreign nationality from hearing security cases, Elsie Leung said that would not be compatible with the Basic Law.

There is no nationality requirement for judges in Hong Kong, except that the chief justice and the chief judge of the High Court must be Chinese citizens and Hong Kong permanent residents with no right of abode in any foreign country.

Do Hongkongers have any say on the proposed law?

Beijing’s move to impose a national security law on Hong Kong not only bypasses the city’s legislature, but also leaves little room for residents to influence the drafting process.

Albert Chen pointed out that the NPC Standing Committee is not required to consult the Basic Law Committee before the new law is passed, but may do so before adding the law to the mini-constitution’s Annex III.

The Basic Law states that the Standing Committee may add to or delete from the list of laws in Annex III after consulting the Basic Law Committee and the city’s government.

Tam Yiu-chung, Hong Kong’s sole representative on the NPC Standing Committee, said on Friday that Hong Kong people could express their views on the draft legislation on the website of the National People’s Congress.

The Standing Committee meets every two months and is expected to hold its next meeting as early as June. Sources said the committee was expected to pass the new law by August.


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