The announcement of a national security law to be imposed on Hong Kong was a shock and tremendous blow. Although there was always such a possibility, we never thought China would go to that extreme – of jeopardizing its own interest and brazenly violating its obligations under the Joint Declaration and the “one country, two systems” policy, especially when the Basic Law has said in so many words that such legislation was for Hong Kong to make “on its own”.

There are important reasons why such laws should be made by Hong Kong “on its own” -because only by doing so can our rights be safeguarded by the Hong Kong legal system and the rule of law. From the days of the negotiation over Hong Kong’s future, Hong Kong people’s greatest fear has been that the draconian laws of China and the way they are enforced would be applied to Hong Kong. And now it seems it is going to happen.

Even though the details of the security law are still unknown, what has been made known already guarantees serious implication for Hong Kong’s rule of law, freedom and autonomy:

- The national security law will create serious and broadly defined crimes covering separatism, subversion, foreign interference and terrorism;

- The contents will be dictated by China’s central authorities without Hong Kong people having any say;

- China’s security agencies may be posted in Hong Kong to see to the enforcement of the law;

- China knows that this is in breach of the Joint Declaration and the Basic Law and is still determined to go ahead regardless of international reaction.

Once China shows that it has no qualms about disregarding its promises, our rights and freedoms are no longer safe.

Impact on the rule of law:

The rule of law relies on laws which are duly enacted, clearly stated, narrowly defined and conforms with fundamental human rights. The wide scope of the national security law means no one can be certain when his or her act or speech may be caught, and therefore everyone will live in constant danger of falling foul of the law with its dire consequences. That in itself undermines the rule of law.

China claims every nation has the right to protect its national security. But this national security law has nothing to do with real danger to China’s national security coming from Hong Kong. It is all about suppressing dissent by threatening severe punishment. “Subversion” is a convenient political tool. No one believes that Nobel Laureate Liu Xiao-bo was a threat to China’s national security, but he was jailed for 11 years for “inciting subversion”, because he
advocated constitutionalism for his country. He died without regaining freedom.

Hong Kong people who criticize the Chinese Communist Party’s rule are now exposed to the risk of long imprisonment. Free speech, freedom of the press, freedom of thought, free exchange of ideas or even of financial information which the Chinese authorities dislike, are exposed to risk. Those who merely advocate Hong Kong independence – the slogan chanted by an increasing number of defiant young people – are now at risk from being prosecuted for promoting separatism.

The rule of law is not only about the law, but even more about the law’s enforcement. It is extremely disturbing that China’s security agents will be involved in the enforcement of the national security law in Hong Kong. We fear the same all-pervasive surveillance, interference with liberty, intrusion into privacy, into every word written or spoken, into a person’s family and associates, into academic research and activities, into school education, naked threat of force or even inhuman treatment may become common.

Hong Kong’s Secretary for Security Lee Ka-chiu has already said that a special unit will be set up for gathering intelligence, and the unit will greatly benefit from the vast experience of the security agencies of China. Once the national security practice in China applies in Hong Kong,
the personal security we have always taken for granted under the rule of law will disappear.

We have no assurance at all that China will respect human rights; quite the opposite. China signed the International Covenant on Civil and Political Rights in 1998 – a year after Hong Kong’s handover, but has not rectified it to this day. Although Art.39 of the Basic Law guarantees the rights under various international human rights instruments, China has time and again asserted its power to interpret any part of the Basic Law in anyway it sees fit. The Basic Law has now become more a charter of interference than safeguard of autonomy.

Impact on the Judiciary:

China’s stance, repeated through the mouths of Hong Kong officials, that the national security law is a “national” law outside Hong Kong’s autonomy, throws doubts on the role of the Hong Kong Judiciary. Will people accused of crimes of separatism, subversion, foreign interference or terrorism be tried in the Hong Kong courts under normal Hong Kong criminal procedure? Or will the accused be extradited to be tried in China before a Chinese court? Or, even if an accused is tried in Hong Kong, will he be tried by a Hong Kong court with an independent judiciary who will uphold all the safeguards of a fair trial and the rights of an accused under the common law? Will the courts have the same jurisdiction to make sure that all the requirements of a fair trial by international human rights standards are fully satisfied?

There are already suggestions that a “special court” should be set up to try national security crimes, from which “foreign judges” will be excluded, which seems to insinuate that some judges are more independent – or dependable – than others. Should this suggestion be accepted, the harm to the prestige of the Hong Kong Judiciary as a whole would be incalculable.

There is the suggestion that no jury shall be allowed – even though the maximum sentence may be life imprisonment, and even though in the legislation proposed by the HKSAR Government in 2003 to implement Art.23 of the Basic Law specifically provides for the right to jury trial. The Hong Kong Bar Association has already voiced the concern that the rights of the accused may be curtailed in the jurisdiction and procedure of a “special court”; and queried whether the convicted will have the right of appeal to the Court of Appeal and Court of Final Appeal under the normal judicial system of Hong Kong.

One may further ask, what precedents and jurisprudence apply in the “special court” - or any court - that tries national security cases? Those of the common law? Or according to mainland Chinese legal thinking? If so, how can the Hong Kong judges, qualified only in the common law, be prepared to try these cases? And even if they are prepared to do so, would it amount to a real trial?

The ramifications are just imponderable, but it is hard to see how Hong Kong can retain its most valuable asset, namely, judicial independence.

Impact on the legal profession:

It is difficult to envisage the impact on the legal profession at this stage. The Chairman of the Bar has raised the query whether only lawyers of Chinese nationality would be qualified to handle cases involving national security. There are also concerns as to whether lawyers who take on the defence of these cases and do their professional duty vigorously will one day go the way of their mainland colleagues the “lawyers for rights”, and become themselves subject to prosecution and persecution. Although this sounds far-fetched today, no one can dismiss such a possibility.

But in between, if the scope of the defence is compressed to such a point as to amount to no meaningful defence, then more and more members of the profession may turn away from criminal practice which may involve them in such cases. This is a future development that will change profoundly the rule of law and legal system in Hong Kong that no one wants to see.

Finally, what we are looking at today may be the beginning of the creation of a system of political crimes and practice in Hong Kong which no one has seen before. In the world’s progress, we have seen the gradual disappearance of political crimes, even in Communist China itself. It is sad to see the regression in Hong Kong, which has enjoyed the rule of law under the common law for some 180 years.

(Margaret Ng Ngoi-yee is a barrister, writer and columnist in Hong Kong. She was a member of the Legislative Council of Hong Kong from 1995-1997; 1998-2012.)

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