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China has revealed some details of Hong Kong’s national security law and may be as bad as the critics fear

Hong Kong Chief Executive: No need to worry about national security law (May 2020)
Barbara C. Arroyo

On Saturday, China’s National People’s Congress (NPC) is expected to pass the legislation in the coming weeks, giving the first glimpse of it in Hong Kong. Critics may be right to worry: As drafted, the law will improve the city’s valuable independent judicial system, allowing Beijing to override local laws, increasing its ability to suppress political opposition.

Most controversially, the law gives Beijing the power to exercise jurisdiction over selected criminal cases, and for the first time in Hong Kong’s history, suspects are expected to cross the border to face trial and be jailed on the mainland.

Protests against the extradition bill proposed by the Hong Kong government last year sparked protests. The protests eventually forced the government to break the law, but led to widespread anti-government unrest, saying Beijing needed to impose new national security regulations.

Anthony Dapiran, A Hong Kong-based lawyer and political analyst, described the new law as “broad-based authority by Beijing” on many key issues in government and society.

Writing on Twitter, the new law “effectively establishes a parallel judiciary (and) takes away from the Hong Kong courts the power of interpretation and final judgment.”

In a statement, the city’s chief executive, Carrie Lam, reiterated that the law “will ensure Hong Kong’s long-term well-being and stability”, reaffirming that it “only targets a very small minority of people” and that the proposed bill “complies with the rules of law” and The applicable rights and freedoms in Hong Kong under the relevant international treaties. ”

New system

When Hong Kong was taken over by the British from China in 1997, the city’s general legal system remained largely intact. Precursors are in effect, and the new substantive constitution, the Basic Law, as well as the various international treaties guaranteed a level of fairness and freedom not seen in China, where the penalty rate is 90% north.

Although the NPC has gained the ability to “interpret” the basic law, in some cases it cannot be rewritten, the central government has no jurisdiction over individual cases, or the prosecution of people in Hong Kong for crimes against Beijing.

The new national security law changes all that. According to details published over the weekend, Chinese security organs have the authority to exercise “jurisdiction” over national security cases under “specific circumstances,” but other prosecution by law is heard by a panel of judges selected by the city Beijing. A designated leader.

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It is not clear whether the suspects will be extradited to mainland China under such circumstances.

Although the draft refers to the “rule of law” and various civil liberties, it is subject to the existing National Security Bill, so that where there is conflict, the National Security Act is prevalent. In practice, this means that when the National Security Prosecution violates human rights protected under Hong Kong law, those rights are terminated.

Writing after Saturday’s announcement, Jerome Cohen, an expert on Chinese law, Dismissed Pointing out that “eye candy” on human rights, “most provisions of the draft (law) appear to violate those protections.”

“The handover was clearly a takeover,” Cohen added.

Kevin Yam, a Hong Kong-based lawyer and former convener of the Progressive Lawyers Group, Said The proposed law is not worthy of legal explanation, and “nothing to analyze.”

“That’s just what they say,” he says. “And if they can’t do what they say when they want something, they change it the way they like it.”

Jurisprudence

Multiple terms revealed on Saturday, despite no indication of actual public consultation or referendum on the bill Eliminating Hong Kongers ’fears over it, Or at least makes it easier to sell to the public.

Such provisions come amid a massive campaign effort to sell the bill, posters and advertisements promoting the plastering of Hong Kong, as well as encouraging Beijing Chinese companies to re-list on the city’s stock exchange.

In particular, the creation of a panel nominated by chief executive Carrie Lam to investigate national security cases may be a sap for those who are wary of reports that the bill would prevent foreign-born judges from listening. As part of a broader legal system that includes the UK, Canada, Australia and many other jurisdictions, Hong Kong periodically appoints Distinguished “permanent” judges To the Court of Final Appeal.

These judges are appointed by the chief executive, but in some cases their presence is disputed in China, which calls for their removal or prevents them from certain sensitive cases. By granting Lamm the power to nominate judges to investigate national security cases, the government essentially overlooks the issue, allowing her to choose the judges most faithfully.

There is the Hong Kong Bar Association Destroyed The plans were “extraordinary” and a major blow to judicial independence, Lam said, adding that she would appoint a panel to monitor cases in which she was an interested party.
Speaking to local media, Bar Association head Philip Dykes said the law was a “recipe for conflict of interest” and would allow lam to “cherry-pick” the judges hearing the most controversial cases.
Opposition legislator and lawyer Alvin Yeng, Said The proposal is a “clear departure from the common law traditions”.

Political Inquiry

Even more worrying is the expansion of the power of Chinese courts and security services to Hong Kong.

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Allowing China’s security apparatus to work in the city increases the fear of illegal violence. China’s dissenters and activists are often threatened with disappearance by authorities or arrested around sensitive events, and many journalists and lawyers are dragged into “tea” with security services, during which they receive thinly veiled threats of potential consequences. Their work.

Given the jurisdiction of the Chinese courts in “specific circumstances”, at the same time, it guarantees convictions in those cases. China’s legal system has been widely criticized for its lack of human rights protection, naked political prosecutions and an almost universal sentencing rate. The country’s own national security law has been widely interpreted in the past to imprison activists, intellectuals and journalists.

Two Canadians who were prosecuted last week for the gooing skin are a good example of this. Michael Kovrig and Michael Spawer were arrested in late 2018, shortly after Huawei executive Meng Wanzhou was detained in Canada. While China claims there is “solid” evidence on the two, Canada thinks the case is “arbitrary” and politically motivated.
Kovrig and Spawer are also an example of how national security law in China differs from democratic countries. For example, Canada is Laws against The goonion and the gooinging church, and the people prosecuted them.
The difference is that those laws and related prosecutions must be complied with Canadian Charter of Rights and Freedoms, The country’s bill of rights, and the court found them unconstitutional.
This is not the case in China, and if the proposal for legislation goes ahead, it may not be in Hong Kong anytime soon. China claims some of its rights Constitution, Are subject to the law and do not violate. There are freedom of expression, religion and magazines In principle, But “may not violate state interests.”

Similarly, Hong Kong guarantees rights under the Basic Law and by signing international conventions, but outlaws these protections under the National Security Law Framework.

Those who seek to assert their constitutionally protected rights in China are often prosecuted on the basis of national security, said Liu Xiaobo, a Nobel Peace Prize laureate who died in 2017 after years of imprisonment on charges of “inciting to undermine state power.” Liu’s most famous work, Charter 08, which he co-authored, called the judges “capable of upholding the authority of the Constitution.”

About the author

Barbara C. Arroyo

Barbara C. Arroyo

I'm a writer, editor and newsroom leader working at the intersection of tech and media, editorial and product, journalism and management. I am driven to transform our industry for the future, develop and mentor our people, build compassionate and innovative organizational cultures, and put readers and communities at the center of it all. I also have a love of storytelling and creative work, and refuse to pick one or the other.

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