Senior Hong Kong officials lined up in recent days to defend China’s national security law for the territory that Beijing is poised to approve next Tuesday, even though none said they had seen the official legislation that would mark the most significant change to the city’s governance in decades.
Carrie Lam, the city’s top official, sought to assure citizens Tuesday that the law wouldn’t impact Hong Kong’s independent judiciary. At the same time, she acknowledged she had not had access to the full draft law, which is being written in Beijing and fast-tracked through unusually frequent meetings of its highest legislative body.
The lack of extensive consultation of even Hong Kong’s top officials and legal chiefs is stoking concerns among lawyers in the city, who fear China will undermine the rule of law by trampling on the British-style judiciary that is independent from government as a deliberate separation of powers.
For Beijing, the new legislation is a way to curtail sometimes violent antigovernment protests that racked the city over the past year. The national security law—announced last month—targets separatism, subversion, terrorism and collusion with foreign actors.
Critics say it will limit free speech and people’s right to protest. Some supporters of the opposition movement have scrubbed their social-media accounts, while teachers and election candidates are facing greater scrutiny by officials of their public comments.
“The national security law is already exerting its impact even before it is enacted,” said Johannes Chan, the former dean of the University of Hong Kong’s law school. “It’s clear that the law will have a severe impact on freedom of expression, if not personal security, on the people of Hong Kong.”
The initial draft was discussed by China’s closed-door National People’s Congress Standing Committee a week ago, but only some details of the proposal were released in an explanatory note by state media Xinhua News Agency late Saturday. Key issues left unsaid were penalties for violators and whether the law would be retroactive—an issue on which officials have given conflicting comments.
The full law isn’t expected to be published until after its passage, which could take place when the NPC standing committee concludes next Tuesday in its second session in less than two weeks—an unusual pace for a committee that typically meets every two months. The law may come into effect soon after.
Hong Kong’s national security law isn’t officially on the agenda, but it didn’t appear on the agenda for the last meeting until the day it started.
Details so far divulged by China have fueled fears among the legal community here about the city’s legal autonomy: One clause suggests that in certain circumstances Beijing can usurp Hong Kong’s jurisdiction, China’s top legislative body can overrule local courts to interpret the legislation, and the law empowers the chief executive to appoint judges to hear national-security law cases.
The city’s former chief justice Andrew Li this week raised concerns that Mrs. Lam could appoint judges. In comments to a local newspaper, Mr. Li said that the judiciary “should decide on the judges who would hear these cases without any interference from the executive authorities.”
Mrs. Lam on Tuesday dismissed concerns that the law would threaten the city’s judicial independence. She told reporters that she will not handpick judges for security cases, but she will appoint a panel of judges based on recommendations from the judiciary. At the same briefing, Mrs. Lam acknowledged she hadn’t seen the full details of the law.
Mr. Chan, the former dean of the University of Hong Kong’s law school, said the provision that vests the power of interpretation of national security cases to the Standing Committee, rather than the city’s highest court, threatens safeguards in the Basic Law, the city’s mini-constitution. The Basic Law states that until at least 2047 Hong Kong law will be enforced by local law enforcement agencies, and administered by the city’s judiciary
“These are the pillars that protect the common law system, and all these pillars are now shattered,” Mr. Chan said.
Hong Kong, a former British colony, follows the common law system, which is based on the concept of judicial precedent. On the mainland the civil law system, which relies more on written statues and laws, is used. Cases in Hong Kong—including ones involving people arrested during last year’s protests —take months or years to be processed through courts, where at times barristers wearing white wigs and gowns argue their cases. China’s legal process is more opaque, often with trials held behind closed doors.
The Law Society of Hong Kong, which represents all solicitors in the city, said it understood the need for the legislation but was concerned that the legislation allows the mainland to claim jurisdiction in “exceptional circumstances,” where individuals could be subject to judicial processes outside Hong Kong’s courts.
“Queries are raised as to whether fundamental human rights including the right to a fair trial can be effectively safeguarded,” it said. “A clarification in this regard is urgently needed.”
A proposed extradition bill that would have allowed for criminal suspects to be extradited to other jurisdictions for trial—including to the mainland—was what sparked widespread protests last June and drew criticism even from pro-business groups. Mrs. Lam withdrew the proposal by October.
Chinese and Hong Kong officials say the national security laws are necessary to prevent violent demonstrations and to bring stability and prosperity back to the global financial center.
Ronny Tong, a senior counsel and a member of Mrs. Lam’s cabinet, brushed aside criticism that the national security law will fundamentally alter the legal system. He said that the law would still be subject to constitutional safeguards on personal freedoms, and Hong Kong’s courts are “world famous with robust judges.”
Source: Wall Street Journal
“Let’s be patient and not jump to any conclusions before seeing the final draft,” he said.
—Rachel Yeo and Chun Han Wong contributed to this article.
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