Chinese and Hong Kong flags fly in a piazza in Hong Kong. Photo: Weibo

Beijing has expanded on several points in a pending national security law for Hong Kong, a piece of legislation that many fear could undermine the city’s special autonomy arrangement with mainland China and compromise its independent judiciary.

In a memo released over the weekend by the Standing Committee of the National People’s Congress (NPC), China’s rubber-stamp parliament, Beijing sought to allay jitters by clarifying the range of crimes the law will handle, namely secession, subversion, terrorism and plotting with foreign forces to endanger China’s security.

A commentary in the official Xinhua News Agency also stressed the need for the law to be drafted and enforced in a way that is compatible with Hong Kong’s common law system. At the same time, Beijing acknowledged its own agents would be dispatched to the city under the law.

Albert Chen, a law professor with the University of Hong Kong who also sits on the NPC’s Basic Law Committee, articulated what he believes are Beijing’s intentions. 

Chen said a key plank of the new law is to uphold the “one country, two systems” governing paradigm in place for Hong Kong since 1997, and that the new law will be attuned to the city’s legal traditions.

The Basic Law Committee, NPC delegates and the Hong Kong government will all have a role in hashing out the law’s parameters and reconciling the differences in various legislation introduced over the years, he said.

Chen added that Beijing would reserve jurisdiction to “try an extremely small number of cases.”

HKU law professor Albert Chen is also a member of the NPC’s Basic Law Committee. Photo: Handout

Hong Kong’s Secretary for Justice Theresa Cheng noted in a June 14 statement that China has a civil and common law system and that it would be “impracticable and unreasonable to expect that everything in a national law, the national security law, will be exactly as what a statute in the Hong Kong SAR common law jurisdiction would be like.”

In response, Chen said some principles from China’s civil law and Hong Kong’s common law system were similar, including legal concepts of retrospectivity, presumption of innocence, burden of proof and standard of proof. Other aspects, he said, would eventually be coalesced into a holistic approach for the new law.

Chen said that definitions of the law’s four crimes would be given in clear and explicable terms to delineate boundaries and so the public clearly knows what acts constitute an offense.

He quoted the NPC in saying that the primary aim of the law would be to prevent such crimes and that because only four national security-related crimes would be covered it is proof of Beijing’s restraint.

Other sources privy to the drafting process, including the city’s former justice minister Elsie Leung, have also confirmed that in most cases the onus will be on Hong Kong’s law enforcement agencies and the independent judiciary to take action.

The city’s police will investigate and arrest, the Justice Department will decide if a prosecution is warranted and local courts will try cases, she said. A defendant’s rights under the Basic Law and the Hong Kong Bill of Rights Ordinance will be protected and the defendant will have the right to appeal all the way to the city’s final appellate court.

The National People’s Congress passed a resolution to draft a national security law for Hong Kong at its annual meeting at the end of May. Photo: Handout

At the same time, Beijing stirred fresh controversy after indicating that the new law would authorize the city’s top leader to shortlist incumbent and retired judges who would be picked to hear related cases.

If so, then the law will mark a striking departure from the current arrangement where judges are appointed by the independent Judicial Officers Recommendation Commission.

Chen, the HKU law scholar, suggested that the city’s leader should still consult the commission and that the new law set out clear criteria for judges, such as nationality and qualification. In an op-ed, Chen also highlighted Beijing’s assurances including that state agents in Hong Kong would abide by the city’s laws.

In a significant amendment that may bring peace of mind to expatriates and international investors in the Asian financial hub, the NPC dropped the crime of “foreign intervention” in its latest memo and shifted the target to locals linking up with foreign forces.

The change has made some wonder if the new law has narrowed its catch-all provisions to focus on local accomplices who align with Beijing’s foes.

Beijing may have realized that in an international city with hundreds of thousands of foreigners living and doing business, it is unrealistic to cleanse Hong Kong of what state media often refers to as “evil overseas forces.”

The change may also mollify a number of countries from America to Australia that have sizable expatriate communities and substantial business interests in the city.

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