National security law: more questions than answers on Hong Kong’s freedoms and rule of law

Much remains to be done to ensure the new law is clearly understood and implemented in a way that limits its impact on Hong Kong’s way of life
Some will welcome Beijing’s move if it restores order after months of civil unrest and protests but, even if achieved, this will come at a price

Cliff Buddle

Published: 6:30am, 3 Jul 2020

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Beijing’s new national security law for Hong Kong has finally been unveiled. Rather than clear up uncertainties, though, it has raised fresh doubts and fears.

The passing of the law by the National People’s Congress Standing Committee on Tuesday sparked fresh protests and civil unrest the following day. The police were quick to use it, making 10 arrests under the law and hundreds overall on Wednesday.

The legislation, comprising 66 articles, is expressed in broad and sweeping terms. It is still not clear precisely what will constitute a crime under the core offences of secession, subversion, terrorism and collusion with foreign or external forces. Officials argue that the new law will strengthen the “one country, two systems” concept, but it makes fundamental changes to the city’s legal system and Hong Kong’s relationship with Beijing.

The law opens the door to some cases being handled by mainland authorities rather than Hong Kong’s courts. It has global reach, applying to everyone, everywhere. Worryingly, the legislation appears to conflict with multiple articles of the city’s de facto constitution, the Basic Law. It is unclear how this will be resolved.

Another concern is the extent to which agencies involved in protecting national security are exempted from judicial scrutiny. The law, for example, creates a new central government office in Hong Kong to safeguard national security. This will not be subject to the jurisdiction of Hong Kong, so will be beyond the scrutiny of the city's courts.

For many, the law has confirmed or exceeded their worst fears. Others will welcome Beijing’s move if it restores order to Hong Kong after months of civil unrest and protests, but this objective, even if achieved, will come at a price.

Now that the law has been passed, much needs to be done to ensure it is clearly understood and implemented in a way that limits as much as possible its impact on Hong Kong’s freedoms, rule of law and way of life. The legislation is not – as some feared – applicable retroactively. It also clearly states the city’s rights and freedoms and rule of law are to be protected.

03:25

Hong Kong police arrest 10 under new national security law

It is difficult to reconcile this reassurance, however, with other provisions which clearly have the potential to do the opposite. The ambiguous wording of the law has left doubts about whether certain conduct will breach it. Police have used the law to arrest pro-independence protesters, including a 15-year-old girl, for displaying flags. Whether this constitutes a breach of the provisions on secession is unclear.

The offence of subversion includes interfering in the government’s performance of its duties by unlawful means. Again, it is not clear what this means. Part of the definition of the new “collusion” offence involves unlawfully provoking hatred towards the central or Hong Kong governments. This is sedition by another name, expressed in the vaguest of terms.

The responsibility for working out what all this means should lie with Hong Kong’s courts. Under the city’s common law system, they interpret the law and apply it on a case-by-case basis. In time, its meaning will become clearer.

This law will have a significant impact on the city’s system of justice. It effectively creates a new system specifically for national security cases. This appears to conflict with the Basic Law’s requirement that the legal system that existed before the city returned to China would remain basically unchanged.

The power of interpreting the national security law lies with the NPC Standing Committee. It is not clear whether the courts will be able to invalidate any parts of it considered to be in breach of the Basic Law. Hong Kong courts enjoy the power of “final adjudication” under the Basic Law. They have the final say in court cases, in other words, but that will not apply to some national security cases.

Officials have stressed that only a small number of exceptional cases will be dealt with on the mainland rather than in Hong Kong, but more clarity is needed. What, for example, will be considered a “complex case” involving a foreign country or a “serious situation” beyond Hong Kong’s control? There is no role for the city’s courts in deciding which cases will be handled on the mainland.

Most cases will be dealt with in Hong Kong, but there are restrictions on the way courts will operate in national security cases. The chief executive will select judges considered suitable to preside over such cases. Those judges will only have a one-year term.

This is likely to create a perception that judges will only be included if they can be trusted to rule in favour of the government. If they don’t, they may find themselves removed from the list. It undermines judicial independence.

02:13

Beijing’s passage of national security law for Hong Kong draws international criticism

The Basic Law provides for government actions to be subject to judicial review. This will not apply to the new committee handling national security and chaired by the chief executive, though. Judicial review is the way in which the courts ensure public bodies operate within the law. To exclude the committee from this process risks abuses of power.

The jury system, also maintained by the Basic Law, is a fundamental and historic part of Hong Kong’s legal framework. It is the ultimate safeguard against oppressive prosecutions and abuses of the judicial process. Under the new law, though, the justice secretary can require cases to be tried by three judges rather than a jury.

Cases involving public order or state secrets can be held behind closed doors with only the judgment made public. The prospect of a person facing life imprisonment in a closed trial with no jury is a chilling one.

Other provisions will trouble the media. The law requires the Hong Kong government to strengthen regulation of the media on national security matters. The police will have the power to order published material to be deleted, and people suspected of having information relevant to national security investigations can be forced to reveal it. There is no exemption for media organisations.

It will take time to work out precisely how the new law will be implemented. If the central government is to make good on its claim the legislation will strengthen one country, two systems and protect freedoms and the rule of law, it must be applied sensitively and with restraint.

There are powers enjoyed by the central government under the Basic Law that it has either not used, or used sparingly, in the 23 years since Hong Kong returned to China. Hopefully, the same will be true of the more draconian provisions in the national security law.

Chief Executive Carrie Lam Cheng Yuet-ngor greeted the law by saying: “We will see the rainbow after the rainstorm, and peace will return to Hong Kong after a year of unrest.” The weather forecast is not good, though, and many a storm cloud still needs to be cleared.

Cliff Buddle is the Post’s editor of special projects

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