While the Standing Committee of the National People’s Congress (NPCSC) was having a closed-door discussion on the Hong Kong national security law, Xinhua News Agency reported that there was a revision to the description of one of the four crimes covered by the law: “collusion with foreign and external forces to endanger national security”.

According to Article 102 of the Criminal Law of the People’s Republic of China, a person who colludes with foreign states could be sentenced to life imprisonment or not less than 10 years of fixed-term imprisonment. Nevertheless, the concept of “collusion” does not exist under Hong Kong’s common law. What precedents should courts follow when handling cases associated with the national security law? Should mainland cases be cited? The CCP’s political establishment is imposing criminal liability on Hong Kong and subverting our legal system. After
all, the NPCSC has no right, nor the ground, to enforce national security law in the city.

Back in the 1980s when the Basic Law was being drafted, there were widespread concerns that Hong Kong’s freedoms, human rights and rule of law would be eroded, hence the creation of a “firewall” between the Hong Kong and mainland systems. Article 18 of the Basic Law is indeed that firewall.

According to Article 18, any national laws to be imposed in Hong Kong should be listed in Annex III with prior consultation from the Basic Law Committee and the Hong Kong SAR government.In February 1999, Michael Suen, then Secretary for Constitutional Affairs, made a bold statement that
“ In future, if any national law proposed to be added to Annex III to the Basic Law has any practical effect in the HKSAR, we will refer the issue to the relevant LegCo Panel for discussion . ”

But now, from the drafting to the approval of the national security legislation, there has been no public consultation. Chief Executive Carrie Lam refused to reveal any details on the meeting with Han Zheng in Beijing, and Erick Tsang just skimped and claimed the government would “listen to public views according to the actual circumstances”.

For the National Flag Law and National Anthem Law alike, to put into effect the criminal liability, national laws listed in the Annex III should go through the local legislative process, whereby stakeholders like Hong Kong citizens, media and lawmakers can examine the clauses and call for revisions before the three readings at the Legislative Council (LegCo). In the case of the national security law, the whole process was skipped, and the law was enacted by NPCSC
and gazetted by the chief executive.

Consultations with the Basic Law Committee and the SAR government and the LegCo amount to a meticulous constitutional process. But the arrangement has now been reduced to a joke and empty talk.

Collapse of firewall

According to Article 18, laws listed in Annex III shall be confined only to those relating to defense, foreign affairs as well as other matters outside the limits of the autonomy of the SAR. Article 23 further specifies that the HKSAR shall enact laws on its own. Hence, NPCSC has gone beyond its authority by executing a law enacted by Beijing. The firewall placed between two systems has collapsed.

A few NPC deputies proposed setting up a specific court to handle cases relating to Hong Kong national security law, and that appointments of judges should be endorsed by the NPCSC. This idea sounds self-serving and reeks of bias. Its practice will fundamentally alter Hong Kong judicial system. It is highly undesirable.

Civil cases in areas such as intellectual property rights, bankruptcy and liquidation, and extended arbitration litigation involve specialized business knowledge. The Hong Kong Judiciary has set up special courts in the Court of First Instance of the High Court and arranged for judges familiar with business and commerce to deal with such cases. For criminal cases like inflicting grievous bodily harm, arson attack, kidnapping and looting of properties, all judges possess the know-how and therefore no special courts are required. By the same token, there is no pressing reason to set up a special court for national security law cases, or the public will have the impression that the judges’ hands are tied and tend not to trust defendants’ arguments.

Political considerations might result in severe sentences for the convicted. That would greatly weaken Hong Kong courts’ credibility and lead to far-reaching harm to our judicial system.

To solely have Chinese judges handle national security law cases in Hong Kong is even more undesirable as it implies that foreign judges are necessarily and unjustifiably lenient when handling cases in which China’s national security is allegedly under threat. According to Articles 92 and 82 of the Basic Law, judges and other members of the judiciary of the HKSAR shall be chosen on the basis of their judicial and professional qualities and may be recruited from other
common law jurisdictions, and the Court of Final Appeal may invite judges from other common law jurisdictions to sit on a trial as required. This is why we have foreign judges presiding over different courts in Hong Kong. Appointments of judges should be based on their judicial and professional qualities rather than nationalities. This principle of meritocracy should not be undermined.

The International Covenant on Civil and Political Rights is still applicable in Hong Kong even after 1997, and the local judiciary always accepts the violation of International Bill of Human Rights and the Hong Kong Human Rights and Democracy Act as defense claims. Deng Zhonghua, Deputy Director of the Hong Kong and Macau Affairs Office, commented that local laws should not conflict with the new national security law. Does it mean the above-mentioned claims will no longer be accepted for this reason? If so, it is an unprecedented threat to the human rights of Hong Kong citizens.

Deng further pre-empted that, under very special circumstances, the central government retains jurisdiction over some cases involving criminal acts that seriously endanger national security. This implies the Hong Kong-based CCP agency to be set up in the future to deal with national security cases will monitor the whole investigation and prosecution processes, and that the extradition bill will come back to life. Also, defendants of serious cases will be sent to courts in mainland China. When cases are handled in different ways depending on which individuals are involved, the independence of Hong Kong’s judicial system will be disastrously damaged.

The authorities have been claiming that the Hong Kong national security law will only affect a minority of people. The mainland’s criminal law attaches importance to ideology rather than objectivity and accuracy. It is a system whereby it is up to those in power to decide on the definition of minority and majority. Self-preservation will end up putting everyone in danger.

Now is the perfect timing for Hong Kong people to get a copy of George Orwell’s Animal Farm.

(Alan Leong Kah-kit, Chairman, Civic Party)

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