What you need to know
The national security law contradicts Hong Kong's de facto constitution and strips judges of their power of interpretation.
The Hong Kong national security law has severely changed the city’s political structure, citizen rights, and legal system. It dealt the most devastating blow to Hong Kong’s legal system since the 1997 handover. Here are several ways the national security law undermines Hong Kong’s Basic Law, the city’s de facto constitution, and its judicial independence.
1. Weakened legal authority of Hong Kong’s Basic Law
The most controversial aspect of China’s national security law is whether it contradicts Article 23 of Hong Kong’s Basic Law, which states that the city is to enact national security laws “on its own.”
China’s Standing Committee of the National People's Congress (NPC) enacting legislation that contradicts Article 23 effectively weakened the legal authority of the Basic Law.
Of the four offenses — secession, subversion, terrorism, and collusion with foreign forces — all except for terrorism were already addressed in Article 23 of the Basic Law.
As for terrorism, Hong Kong in 2002 implemented the Cap. 575 United Nations (Anti-Terrorism Measures) Ordinance based on a UN Security Council decision.
Beijing’s reasoning for overriding Hong Kong’s local system was that national security is not an item governed by the city’s autonomy. Just because Beijing once granted Hong Kong the right to make its own laws does not mean China withdrew its right to legislate.
“Every sovereign state has the inherent right to legislate in the interest of its national security,” China’s Foreign Ministry Spokesperson Zhao Lijian said in a press conference.
Article 62 of the national security law mandated that it shall prevail over the “local laws” in Hong Kong where the provisions are inconsistent.
In theory, the Basic Law is a “national law” of China. The “local laws” specified in Article 62, therefore, shall not include the Basic Law. However, Article 39 under the Basic Law, which guarantees human rights protections to Hong Kong residents, could likely be interpreted as “local laws” as the provisions were applied to Hong Kong.
Article 4 of the national security law also stipulates that “human rights shall be respected and protected” and that the rights include “freedoms of speech, of the press, of publication, of association, of assembly, of procession and demonstration.”
But the devil in the details lies in the phrase “in accordance with the law.” The national security law is now the law under which the rights and freedoms are protected. It’s possible that subsidiary laws coming out of the national security law will conflict with the rights and freedoms provision.
2. Article 22 of the Basic Law bypassed
Article 22 of the Basic Law states that “No department of the Central People’s Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law.”
We can almost be certain that the Office for Safeguarding National Security of the CPG in the HKSAR is a branch under the Central Ministry of State Security. Beijing, however, claimed that this is a bureau “dispatched by” the central government, rather than “a department directly under” the central government.
In practice, any Chinese government organization can circumvent Article 22 restrictions to be established in Hong Kong as long as it was “dispatched.” These organizations may interfere in the local affairs legally, further limiting the rights to self-govern in Hong Kong.
3. Hong Kong courts are deprived of interpretation power
Article 65 of the national security laws states that the power of interpretation shall be vested in the Standing Committee of the NPC. Admittedly, it is natural that the NPC wants to retain power over legal interpretation. Annex III of Basic Law, for instance, grants the committee interpretation rights. But those clauses are not directly related to Hongkongers’ daily lives, such as declaration of territorial waters.
Laws that do touch upon daily lives, the National Anthem Ordinance, are usually governed by local laws and local court’s interpretation..
But as ruled by the national security law, the power of interpretation does not belong to the Hong Kong courts. This will bring three major challenges to the city’s legal system.
- The legal text of the national security law vastly deviates from that of the Basic Law. Without the authority to interpret the clauses, Hong Kong judges will undoubtedly run into problems during trials and ruling.
- When the national security law clashes with the Basic Law, judges can only refer to the “uninterpretable” national security law as the benchmark.
- Hong Kong courts will have to keep requesting the Standing Committee of the NPC for interpretation.
4. Mainland Chinese laws implanted into the body of common law
Written with the legal language and thought from mainland Chinese laws, the national security legislation severely clashes with Hong Kong’s common law legal system. The gap between the legal texts is so wide that lawyers, prosecutors, and judges will have a hard time citing past cases from other common law jurisdictions that value precedent.
Additionally, lacking the power to interpret the national security law, Hong Kong courts will likely have to call on an “expert witness” from mainland China to “explain” the meaning of the text.
5. Direct extradition
Articles 55 and 56 of the national security law mandate that China’s Supreme People’s Court shall designate a prosecuting body and a court for cases upon request from the Office for Safeguarding National Security. The original extradition bill had at least included the Hong Kong courts as a barrier, which is removed from the new law.
6. Extraterritorial legal power
Most of Hong Kong’s criminal laws have no extraterritorial legal authority. For example, Hong Kong authorities had no right to prosecute Chan Tong-kai over his murdering of his girlfriend in Taiwan. But the new law’s broad extraterritoriality may endanger foreign nationals who support “Hong Kong independence” overseas. Not only does this overturn the concept of jurisdiction in Hong Kong, but also affects diplomatic relations and matters of mutual legal assistance.
Canada, for instance, already suspended its extradition treaty with Hong Kong due to the heightened risks against Canadians.
TNL Editor: Daphne K. Lee, Nicholas Haggerty (@thenewslensintl)
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