By Denis Edwards
Lord Sankey once described the Canadian constitution as a ‘living tree’ which must be allowed to grow within its natural limits. And so it did, nurtured by the common law system.
In 1997, many lawyers in Hong Kong had similar hopes for the Basic Law, but now winter’s chill has come to Hong Kong’s constitutional system. If the cold becomes too great, not only might the tree die but the Hong Kong common law system which nourishes it may not survive either.
Assuming they will be allowed to do so, historians can answer who is truly to blame for the mess surrounding the national security law, to be passed by the National People’s Congress and applied to Hong Kong under Annex III to the Basic Law. For lawyers, some urgent questions must be answered now about this significant intrusion into the province of Hong Kong law.
The debate has already begun on the new law’s compatibility with the Basic Law. The meaning of articles 18 and 23 will continue to be contested and the argument that the NPC has exceeded its powers under the Basic Law will not disappear.
But these debates must not distract attention from the fact that the new law poses a serious threat to Hong Kong’s common law tradition.
In the first place, the national security law will be a Mainland law containing terms and principles which are rooted in Chinese law. It may be that a local law will transpose the key terms but when questions arise about their meaning, Mainland law will ultimately be determinative. This has to be so: what the NPC intends by ‘sedition’ or ‘subversion’ must be matters for it.
When applying the new law, local courts will have to interpret it in the light of Mainland legal concepts and principles. This means, for example, that we can’t be sure what scope there will be for the common law principle of legality when interpreting the legislation. This principle limits laws so that they are only used for proper purposes.
But what exactly are the purposes of the new law? Even if foreign judges in the Court of Final Appeal are allowed a role here, the Standing Committee of the National People’s Congress will have the final say on the law’s scope and meaning.
The inevitable role for national law in determining the meaning of the new law is only the start of the difficulties. There is also concern about the emerging reality that neither local law nor the Basic Law seem to limit Mainland institutions in the same way that a ‘written’ constitution confines all levels of government by the same legal order.
Time will tell how Mainland agencies responsible locally for the national security law will comply with Hong Kong law. They will surely be bound by Hong Kong law when investigating crime, including when questioning suspects and searching property in Hong Kong.
But will they influence prosecution decisions? Will evidence obtained by them in the Mainland, perhaps through torture, be admissible in Hong Kong courts?
There is also a real practical problem about the impact of the new national law in Hong Kong. The Mainland government will not only be interested in enacting a national security law. They must also be interested in it being implemented effectively.
In practice, this means that there will be implications for the law of evidence and procedure in Hong Kong, where they come into contact with the new national law.
For example, in a case governed by the new law, is it obvious that the ordinary Hong Kong laws of evidence will apply? What if, in the Mainland’s view, local laws result in obstructing the full effectiveness of the new law?
Will the answer then be that local rules must give way to the imperatives of the new national law? Might there be a need for special rules on evidence and procedure to support the new law? Or as some have claimed, special national security courts?
Experience elsewhere is not encouraging. In the UK, there are special tribunals for certain national security cases. These sometimes sit in private, with defendants represented by specially approved advocates and decisions only published in redacted form.
This would be a very bad example for Hong Kong to follow but it is at least redeemed by a robust judiciary, a democratically elected parliament and oversight by the European Court of Human Rights.
The risk is that it will not be acceptable to Beijing if the effectiveness of the new law is obstructed by Hong Kong’s common law system. If difficulties arise, questions about the compatibility of other Hong Kong laws with the new national law may also have to be referred to the NPCSC. And so the intrusion of national law into Hong Kong will become deeper still.
Changes to rules of law in a particular legal system often have knock-on effects for other laws. Having brought a cuckoo into the nest, it is uncertain what all the implications will be.
There is a line in the film, A Man for All Seasons, about the life of Sir Thomas More, which has lessons for us now. When asked by his ambitious apprentice why we don’t just do away with inconvenient laws, Sir Thomas replies that the land (like Hong Kong) is planted thick with laws and if we cut down the last law, there will be nothing to defend us when we have to face the Beast.
Those in the Hong Kong government and elsewhere who support the new national security law need to stop and ask themselves this: even if there is a political case for the new law, will its impact on the common law system in Hong Kong, and on the rule of law as we understand it here, be so damaging that there will be no meaningful law left.
Dennis Edwards is a member of the Faculty of Law at the Chinese University of Hong Kong and a barrister in London. He has taught law for over 30 years, including 8 years in Hong Kong, and practised public law for more than 15 years.