by Lo Fung

It was known that the devil is not in the details of the National Security Law (NSL), but the law itself to be promulgated unilaterally by Beijing. It was unexpected that Beijing would be so reluctant to announce the details from the passing to the implementation of NSL such that it leaves absolutely no room for discussions, comments or feedback from Hong Kong’s legal profession, academia and citizens, as well as the international community. Even those fortunate enough to be selected as consultants, such as the Legislative Council Chairman Andrew Leung Kwan-yuen, representative of the National Committee of the CPPCC and the distinguished ExCo member Joseph Yam Chi-kwong, did not get see the bill. They were only able to make remarks based on the superficial details laid out for them. This kind of so-called consultation is even worse than just doing it for formality and a much darker shade of black-box operation than the typical legislative process for major bills in mainland China. This is downright absurd.

Why is China so obscure with the NSL? As the most loyal member of the Basic Law Committee of the National People's Congress Standing Committee (NPCSC), Maria Tam Wai-chu said that national security is the central government’s responsibility and that Hongkongers have no bearing on the decision. According to Tam, as Hongkongers can only receive the imperial decree, it is unnecessary to disclose the details early to allow for discussions among Hongkongers, and very reasonable to unveil at the final moment.

Another pro-Beijing heavyweight, former Secretary for Justice Elsie Leung Oi-sie was relatively more candid. She said disclosing the details early would only trigger debates one after another and may provoke social resistance and undermine the situation, while announcement at the final moment can avoid these problems. She also urged Hongkongers not to worry and have faith in their own rule of law.

It is natural for the two loyal guards giving their all to defend the evil law, as by doing just that, they would receive a lucrative amount of wealth and gain much power. However, not only does their justification lack substance, but they are simply insulting the intelligence of the citizens. Apparently Hong Kong’s NSL possesses the same superior legal position as the Basic Law, which means it can override Hong Kong’s law; but the Basic Law, this small constitution of Hong Kong, had gone through 5 years of drafting process. A Consultation Committee that covered citizens from different sectors and backgrounds was set up specially in Hong Kong. Public consultation meetings were called one after another, citizens’ opinions on every single concrete provision were collected, and at least two consultation reports were published for the drafting committee’s reference and to help them making amendments. The Law was lastly finalized and passed in 1990.

If NSL has the same status as the Basic Law, it should go through the same solemn procedures with repeated consultations and amendments made to the articles until satisfactory. How is it then possible to complete the legislation in 5 weeks and Hongkongers are still none the wiser couple of days before the law is being passed?

Furthermore, Hong Kong’s NSL has almost completely overthrown the “Sino-British Joint Declaration” and the “One Country, Two Systems” policy in the Basic Law. It changes the rule of law, the social rules and rewrites the citizens’ entity of rights and freedoms. The impact it has is akin to amending the constitution. If that was the case, the authorities ought to have regarded this more solemnly, to have allowed the citizens to fully participate in the discussions in order to minimize their shock and sense of insecurity. In contrary, those in power in Beijing prefer to ride on their power trip and play the unpredictable game with their “peasants” by keeping the articles’ details secret until the eve of passing the draft law. This has shown, not only do they ignore Hongkongers’ concerns, but their lack of respect towards the amendment of important laws and constitutions, treating these solemn procedures as children’s games.

Elsie Leung said, Hongkongers should have faith in Hong Kong’s rule of law and not worry about Hong Kong’s NSL taking their freedoms and rights away. Such comments absolutely undermine Hongkongers to the level of ignorant toddlers. Hongkongers’ disgust and resistance towards Hong Kong’s NSL is not because we worry about the court and the judges, but because this evil law would open the Pandora’s box to the currently effective, independent judicial system, common law system. It would open the door for law enforcement officials from mainland China and the concept of “politics overrides justice” to enter Hong Kong, shattering the rule of law’s protective shield.
We can imagine, under Hong Kong’s NSL, the Police Force, Secretary for Justice, the judiciary system, will all build up their own troupe, making their own rules and systems, unrestrained by any mechanism in Hong Kong’s legal system including Legislative Council and Court of Final Appeal. The Chief Executive and her National Security Advisor, National Security Commissioner from the Mainland will, directly or indirectly, call the shots. Borrowing a metaphor from the popular film “Shaolin Soccer”, Team Evil Coach Hung (played by Patrick Tse) famously said, “the referee, linesmen, Football Association, Football Club, Football Committee, they are all my people! How are you going to win against me?”

In other words, those who get arrested or charged because of NSL will be unlikely to receive fair treatments. Their rights will not be protected as the government and law enforcement can change the rule of the game accordingly to target the defendant. There will be no way to complain. No matter how hard the Court of Final Appeal and judges of all levels try to preside over cases with fairness and equity, how does that help when they do not actually have the power to handle national security cases? Under these circumstances, how can the citizens’ rights and freedoms be safeguarded and how can they not worry?

Click here for Chinese version.

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