From Xinhua’s recently released summary of the new national security law it appears that any hope that Beijing officials will show restraint is sure to be dashed.

The draft HKSAR Law on the Preservation of National Security, with six chapters and 66 articles, reflects extreme fear of local activism and foreign intervention. It presumes that youngsters in the 2019 protest could not have formed their opposition movement on their own. We are never given the reason why young people promoting five demands that are essentially in compliance with the commitments of the Basic Law and for police accountability would need foreign help to craft and solicit support for these matters.

Public skepticism about collusion seems especially warranted when you consider that these young people’s concerns were shared by the majority of Hong Kong people who voted in the 2019 District Council elections and the nearly 80 percent of people polled who demanded an independent investigation of police conduct. Are the majority of Hong Kong people under the influence of foreign manipulation or is it simply that the government lost the argument?

The “One Country, Two Systems” model makes sense only as a principle for enabling the return of Hong Kong to Chinese sovereignty while preserving Hong Kong’s high degree of autonomy and greatly valued rule of law and associated freedoms. Such preservation required barriers to intrusion of both the mainland legal system and mainland official interference. Recognizing the special threat of mainland-style national security laws, Hong Kong, under Article 23, was to enact such legislation “on its own.” Hong Kong’s independent common law judges were to serve as the final guardians against official overreach.

All of that is now set to go out the window with full support from Hong Kong officials. The new law is expressly stated to override all local laws that are inconsistent with it. Further, under China’s Legislative Law, a national law that is more specific and later in time would be superior to a more general early law. As such, the draft appears to effectively amend the Basic Law without undergoing the required amendment procedures.

The draft provides that the HKSAR shall “respect and protect human rights” in accordance with the Basic Law and the human rights covenants. This repeats what is already provided by the Basic Law but affords no method for achieving that purpose, where other provisions of the new law may violate either the spirit or the letter of those human rights guarantees. Would a local Hong Kong court dare to declare parts of the new national security law to be a violation of the Basic Law and therefore invalid?

Is it possible that the court would act to or even be allowed to block the acts of mainland officials, in conducting investigations, apprehending suspects or rendering them across the border for trial? Chances of this are surely slim when mainland officials are assigned to “oversee” both law enforcement and the courts in the implementation of this law. Furthermore, the Standing Committee of the National People’s Congress (NPCSC) will be standing by with the ultimate “power to interpret this law.”

The obstacles to this important role for independent common law courts are even greater than the mere logic of such NPCSC oversight. The draft provides that the Chief Executive will “designate a number of judges” from among current or former judges to preside over such cases. How independent will judges be if their selection depends on the approval of those charged with enforcing the law?

To make matters worse, the draft law provides for “specified circumstances”, where jurisdiction will be taken out of the hands of the HKSAR and a defendant will be transferred to mainland jurisdiction. What circumstances?

It seems the statement about the new national security law released by the Chief Executive’s office really means what it says: “ It will only target an extremely small minority of people who have breached the law on those offences, while the life and property, basic rights and freedoms of the overwhelming majority of Hong Kong residents will be protected.” Presumably, the rights of such “small minority of people” will not be fully protected.

Problems with the law do not end at the criminal court. For reasons yet unknown, provisions in the draft require anyone running for election to swear a loyalty oath to the SAR. Since such oath is already required under the Basic Law, speculation is rife that the government aims to impose a requirement that such candidates swear their support for the new national security law. Such might eliminate candidates and improve the chances for the pro-establishment camp in the September LegCo election.

The establishment of a local National Security Preservation Commission made up of most cabinet members, with a mainland-appointed national security adviser, seems set to insure mainland oversight over all duties of the Chief Executive under the law. That the commission will be charged with promoting “the construction of legal systems and enforcement mechanisms for preserving national security” may leave us wondering about continuance of local autonomy and integrity of legal processes.

The crimes covered, including criminal separatism, subversion, terrorism, and “colluding with foreign or overseas forces,” still await coherent definition. The latter crime of collusion seems aimed to stifle all international human rights advocacy.

The law sets up a Central Government Office for the Preservation of National Security in the Region. We were only recently told that the Liaison Office is not bound by the non-intervention requirements of Basic Law Article 22. We can only imagine the projected intervention of mainland public security officials charged with the duty to “oversee, guide, coordinate and support” local national security investigations. How many such people will be scurrying around Hong Kong, digging into local finances and politics? Will such investigations extend to past behaviors? What will be involved in their duty to establish a “coordination mechanism” with “judicial organs”?

This law clearly takes critical decisions about enforcement out of Hong Kong hands.

(Professor Michael C. Davis, a Senior Research Scholar at the Weatherhead East Asia Institute at Columbia University, was formerly a professor in the Law Faculty at the University of Hong Kong.)

---------------------------------
Apple Daily’s all-new English Edition is now available on the mobile app
To know more: https://bit.ly/2yMMfQE
Apple Daily mobile app latest version DOWNLOAD NOW