By Douglas Kong*
The common understanding of Hong Kong after the 1997 handover is that it is governed as a Special Administrative Region of China, with a high degree of autonomy under the territory’s mini-constitution, known as the Basic Law.
China may be an authoritarian regime, but under the One Country, Two Systems principle, Hong Kong should retain its civil liberties and way of life after the handover and residents should continue to enjoy the rights and freedoms guaranteed by the Basic Law.
All of these are now in question, after China imposed the wide-ranging national security law (NSL) on Hong Kong, overriding the city’s independent legal system, local legislature and even the Basic Law.
Major offences under the NSL – “secession,” “subversion,” “terrorist activities” and “collusion with a foreign country” – are ambiguously worded and lack clear guidelines. Authorities are granted massive power to target and persecute dissidents. The encroachment on civil liberties, such as freedom of speech, of the press, and of association – protected by Article 27 of the Basic Law – is completely disproportionate.
Many provisions of the NSL are in clear violation of fundamental human rights. Refusing to grant bail unless a court has sufficient grounds for doing so renders the law inconsistent with the presumption of innocence and presumption of bail, as enshrined in Article 87 of the Basic Law and Article 11 (1) of the Hong Kong Bill of Rights.
Article 43 of the NSL grants Hong Kong police unchecked power to search premises, freeze assets, request information, intercept communications and conduct surveillance on suspects. Under Article 14, no one must interfere with the work of the newly established “Committee for Safeguarding National Security” (the “National Security Committee”) and its decisions are not amenable to judicial review.
A Communist Party official has described the NSL as a “sword of Damocles” hanging over subjects. The maximum penalty for people convicted under the law is life imprisonment and this terrifying weapon certainly hasn’t been left unused. Since it came into effect on June 30, 21 people have been arrested under the new NSL, including prominent pro-democracy activists.
The law says nothing about whether or not its provisions are retroactive despite “promises” from Chinese officials. Some legal experts have told state tabloid Global Times that the NSL could be applied retroactively to cases relevant to the anti-extradition bill movement, which gained momentum in June 2019.
What about Hong Kong’s judiciary? Would the city’s common law system offer protection of fundamental rights? It is supposed to do so under the Basic Law: the Department of Justice controls prosecutions free from any interference (Article 63), the courts exercise judicial power independently (Article 85), and the principle of trial by jury is maintained (Article 86).
But these principles, of course, get in the way of “safeguarding national security.” That’s why under Article 18 of the NSL, the Department of Justice shall seek consent from the National Security Committee before appointing prosecutors for NSL cases. In the name of national security, the courts shall also be more “effective” in processing those cases.
The NSL stipulates that the chief executive – currently Carrie Lam – may consult the Committee before appointing judges (Article 44), the Secretary for Justice may direct NSL cases to be tried without a jury (Article 46), and it is up to the chief executive, not the courts, to decide whether an act involves national security and renders the perpetrator liable under the NSL (Article 47).
One may still have faith in Hong Kong’s courts because, after all, the Basic Law says that “courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region.” But be careful of the “full force” of the NSL because, according to the law, China’s Office for Safeguarding National Security in Hong Kong may exercise jurisdiction over cases which China considers to be “complex,” “serious” and “imminent.”
If that happens, under Articles 56 and 57, China’s judiciary will take over and the person will be tried by Chinese courts under China’s national laws. So far there is no sign of change in China’s deeply flawed criminal justice system. Liu Xiaobo – a dissident and Nobel Peace Prize winner who drafted the democracy manifesto “Charter 08” – was sentenced to 11 years’ imprisonment for “inciting subversion of state power.”
When China’s future leader Xi Jinping visited Hong Kong back in 2008, he suggested that the three powers of the Hong Kong government – executive, legislative, and judiciary – should understand and support each other. By further empowering the executive branch and undermining the independence of the judiciary, the NSL appears to be an important and inevitable step towards this “cooperation of powers” in Hong Kong.
Carrie Lam has claimed that Hong Kong has an “executive-led” political system and, in many respects, it is true. Inspired by the former colonial government, Hong Kong’s post-1997 political system is designed by China to be a continuation of the previous model of bureaucracy-based colonial governance.
There are built-in checks and balances but these are weak. Hong Kong’s Legislative Council is not a legislative body in the normal sense, as it cannot propose its own legislation and only half of the seats are directly elected. With the mass disqualification of opposition candidates from standing in elections, even this Legislative Council has no other choice but to become a toothless rubber stamp.
Before the passage of the NSL, at least activism in Hong Kong’s civil society and its judiciary could pressure the executive branch to be publicly accountable. But now it is becoming clearer that China favours colonial-style governance, and will not hesitate to draw its “sword” against dissidents. It may only be a matter of time before Hong Kong becomes yet another silenced Chinese city.
*The author is a doctoral candidate in law who was granted a pseudonym owing to safety concerns related to the security law.
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