On Saturday evening, China’s top Legislative body, the National People’s Congress Standing Committee (NPCSC), announced new details of the impending national security law in Hong Kong after a three-day deliberation session.
Among the details that were released, it was revealed that Hong Kong’s chief executive officer Carrie Lam would be able to appoint judges to handle cases related to national security.
The national security bill that Beijing is in the middle of creating for the island of seven million, prohibits acts and activities of secession, subversion of state power, terrorism, separatism and collusion with external forces that are deemed to endanger national security.
Under the current draft legislation, Lam would have the right to assign former or incumbent judges to hear trials leading many to question whether there will still be impartiality in the relevant cases.
Lawyers and members of the opposition have labeled the move “unusual,” expressing concern over the “complicated role” of Lam and questioning whether she is the appropriate person to determine which judges are fit to preside over legal cases.
“It is very odd for a person [who has] a stake in the prosecution to select the judges,” said Hong Kong Bar Association Chairman Philip Dykes in an interview with SCMP.
Angeline Chan, a solicitor and convener for the Progressive Lawyers Group also said that Lam’s ability to “cherry pick” judges is an act to “import political elements into the judiciary system which is supposed to be impartial.”
Other details of the bill emerge
As well as Lam’s new power to designate judges to specific national security cases, several other details of the national security bill have also been released.
The bill states that Hong Kong is to establish a central government agency to “monitor, supervise, coordinate and support” the national security situation in Hong Kong. Alongside this agency, there will also be a new security commission to safeguard national security interests which will be chaired by Lam along with an adviser appointed by Beijing.
“From these initial details, this new law presents unprecedented legal questions that we will have to confront in coming years,” barrister and professor at the University of Hong Kong’s (HKU) law school Simon Young told Reuters.
Young also expressed worry over the new legislation’s “broad supremacy” over current and future Hong Kong laws, citing the fact that the new law would override local legislation when conflicts arise.
While Hong Kong will primarily lead law enforcement efforts, Beijing will retain jurisdiction to pass the final judgment in a “very few” cases if there is dispute or ambiguity in the interpretation of the law.
“For Hong Kong laws that are not in line with this [impending national security] law this law’s requirements will apply, and the right to interpret this law lies with the National People’s Congress Standing Committee,” read a press statement released by Chinese state media outlet Xinhua News Agency.
In an effort to specify what constitutes a breach of the law, the bill was modified to state that anyone who “colludes with foreign states in plotting to harm the motherland’s sovereignty, territorial integrity and security” must be sentenced between 10 years to life imprisonment.
This was perceived as a “shocking concept” by some given Hong Kong’s international reputation.
“We frequently come across consuls general, foreign legislators, officials, academics, and journalists,” said Civic Party lawmaker Dennis Kwok.
“We would talk to them about Hong Kong and they would talk to us about international affairs that are of interest to them. Are they saying that all those would be deemed as colluding with foreign forces, hence [it] would become a criminal act going forward? That is ridiculous.”
However, some applauded the rewording stating that the law aligns itself with mainland China’s existing law.
HKU law faculty dean Fu Hualing, believes that the move is “aimed at making the new national security law compatible with China’s criminal law. He also noted that the last known charge for colluding with a foreign state in China was in 1979 when the Chinese Criminal Law came into effect.
On a smaller scale, a spotlight has been shone on the youth in Hong Kong – the crowd primarily responsible for driving the anti-government demonstrations.
The legislation encouraged the Hong Kong government to “strengthen its efforts to monitor and manage schools and societies where national security is involved.” The new guidelines issued last week by the Education Bureau stated that all schools in Hong Kong must play the Chinese national anthem during celebrations for New Years Day, the anniversary of Hong Kong’s handover to China and China’s National Day.
They also instructed all schools, both local and international, to monitor cases of students and teachers disrespecting the anthem and to inform the police if the acts involved serious and deliberate insult to the anthem.
Both sides respond
Despite the ongoing opposition against the proposed legislation, some also believe it to be reasonable.
“Since Hong Kong is an inseparable part of China, the new law only matters to those who intend to undermine the rule of law of China and Hong Kong,” said Song Sengwun, an economist at CIMB Private Bank in Singapore.
“For the average person, life goes on,” he added.
Common principles of the rule of law such as the presumption of innocence, fair trial, protection of defendants’ rights and other human rights safeguards are also included in the bill.
However, many are still concerned about the vagueness of the draft legislation.
In an open letter signed by 86 groups to the NPCSC, it was stated that “vague terms leave the proposed law open to abuse by authorities to crack down on a wide range of rights and freedoms.”
The group also said that the state must provide “adequate safeguards and effective remedies against abuse.”
Leader of the Civic Party Alvin Yeung, also expressed worries about Beijing’s encroachment on the city’s freedoms.
“It’s almost like Beijing’s hand is right in the center of the administrative and judiciary wing of Hong Kong,” he said.
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