The new national security law for Hong Kong being drafted by the Chinese parliament may turn out to be less draconian or onerous than feared.
The law is not likely to be retroactive, in keeping with Hong Kong’s common law principles, which include a defendant’s presumption of innocence.
The onus will be on the city to arrest, prosecute and try offenders. Foreign judges within the independent judiciary may also hear related cases.
Furthermore, even though Beijing can send in state agents for matters related to national security “when the need arises,” they will not have the authority to enforce the impending law in ways like snatching people deemed a threat to the state. Only the Hong Kong police will be able to arrest people.
These details may be reassuring for many locals, expats and international investors in the Asian financial hub after the city was jolted by Beijing’s unsolicited decree to formulate a law to criminalize secession, subversion and foreign intervention.
The legislation, announced during China’s annual parliamentary session last month, triggered big swings in the local financial markets. Yet the Basic Law, the constitutional document of the former British colony, does have a clause allowing Beijing, through the National People’s Congress (NPC), to impose a national law pertaining to defense and foreign affairs on the territory.
Now the city’s government and pro-Beijing politicians have scrambled to quash rumors and assuage fears amid talks of an exodus by the elite and capital flight that might undermine the city’s standing.
One credible source of the likely key planks and provisos of the upcoming law is Regina Ip, Hong Kong’s former security minister and a heavyweight of the city’s pro-establishment bloc.
She told reporters on Tuesday that past activities were unlikely to be covered and made punishable under the new law, which would not have any critical time aspects.
“The motion passed by the NPC to draft the law noted clearly that it would take effect upon promulgation by the NPC and the Hong Kong government [thus without any retroactive power],” said Ip.
She also added that concerns over Beijing’s overreach and extraterritorial enforcement were unwarranted.
Chinese state agents could be dispatched to the city according to the new legislation but they could only “observe, collect information and analyze it” and should not overstep the limits. They must also obey the city’s laws.
Ip, the chairwoman of the New People’s Party and also a member of the Executive Council that advises Hong Kong’s top leader, said Beijing would be clear on the specifics of the new law to make it congruous with the city’s common law system and that the city’s government and legal experts would have their input when the legislation is being drawn up.
Hong Kong’s Chief Executive Carrie Lam is in Beijing on Wednesday to discuss the new law with the NPC.
Ip also revealed that whether the local police would have the capability to collect and analyze information about national security and protect confidential information would determine if China’s state security agency must operate a base in the city.
“It’s a daunting task for the local police force as you cannot simply hire a fresh college graduate to do that, and the police may lack talent or experience on this specific front and thus may need Beijing to send in its own agents,” said Ip.
Ip, as the top official in charge of the city’s security affairs and the police force, failed to see through the enactment of Article 23 of the Basic Law concerning national security in 2003, after the bid outraged Hongkongers, half a million of whom took to the streets to protest.
The flopped local legislation has been cited by the NPC as a reason for its unilateral move to draft a separate law and apply it to the territory.
Meanwhile, Hong Kong’s Secretary for Justice Theresa Cheung, who is also in Beijing with the chief executive, rejected suggestions from some pro-Beijing figures that only Chinese judges can be allowed to adjudicate cases.
Cheung said that there were no grounds for banning some judges from hearing cases simply because they were non-Chinese or from another country. She added that there was no need to establish a special court for national security-related cases.
Fifteen judges from other common law jurisdictions such as the United Kingdom, Canada and Australia sit on the bench of Hong Kong’s Court of Final Appeal and two out of the three permanent judges at the court are non-Chinese residents of the city.
Some legal scholars in the city also argue that non-Chinese and foreign judges can help ensure an open, fair trial and boost the confidence of the international community.
The city’s security chief John Lee said he would tell the central government more about Hong Kong’s common law system when meeting officials in the capital city.
“I am in charge of the enforcement side so I will do my best to reflect how law enforcement agencies operate under the common law system, how the collection and presentation of evidence will take place in court, and how some common law principles will apply in the adjudication of cases,” Lee said.
The Hong Kong Bar Association has made public a letter to the NPC urging it to consult the people of Hong Kong.
The association’s chair, Philip Dykes, said meaningful public consultation on the new law would be crucial due to its “momentous significance” and widespread concern. He hoped the association could be provided with a copy of the draft legislation when ready to give constructive comments on its form and content.
Dykes noted in the letter that Article 18 of the Basic Law says national laws shall not be applied in Hong Kong except for those added to Annex III, and these laws shall be strictly confined to those relating to defense, foreign affairs and matters outside the limits of the city’s autonomy.
British National passport
In a separate development, British Prime Minister Boris Johnson has promised that his cabinet will amend rules to allow the 300,000-plus holders of the British National (Overseas) passport, all Hongkongers born before the 1997 handover, to stay and work in the UK for up to a year (with extensions allowed) to pave the way to full citizenship.