Hong Kong’s “National Security Law”: The National People’s Congress passed a legislative decision, causing “devil in details” concerns

The 13th National People’s Congress of China on Thursday (May 28) passed 2878 votes in favor, one against, six abstentions, and one person did not press the key. It gave the draft legislative decision of the Hong Kong National Security Law. When the decision was passed, applause was heard.
The Standing Committee of the National People’s Congress is officially authorized to conduct the legislative work of Hong Kong‘s National Security Law. After the law is passed, it will be promulgated in the form of Annex III of Hong Kong‘s Basic Law, which includes rules such as subversion of state power, the secession of the country, terrorist activities, and external power intervention. It is expected to be adopted as soon as June this year.
The new version of the draft decision changed the prohibition of acts that endanger national security to actions and activities, covering a more comprehensive range of requirements. The requirement for the chief executive was changed from “developing national security promotion education” to developing national security education.
As the legislation bypasses the Hong Kong Legislative Council directly in Annex III of the Basic Law, the Hong Kong democrats and the legal community are concerned that such an approach would weaken Hong Kong’s “high degree of autonomy. The National Security Law enacted by the National People’s Congress may contradict Hong Kong’s implementation of human rights protection Articles. The outside world is worried that there will be criminalization against those who criticize the government…
The Chief Executive of Hong Kong, Lin Zhengyue, issued a statement on Thursday, welcoming the National People’s Congress to pass the “Decision.” The Hong Kong Government will cooperate to complete the legislative work as soon as possible. During the process, it will actively reflect the specific situation of the Hong Kong Special Administrative Region and emphasize that the law is to prevent, suppress, and punish “Few lawbreakers endangering national security,” maintain Hong Kong’s prosperity and stability, and allow “one country, two systems” to be stable for a long time, and will not affect the rights and freedoms enjoyed by Hong Kong residents according to law.
US Secretary of State Pompeo declared that Hong Kong no longer possesses a “high degree of autonomy” and no longer receives special treatment from the United States hours before the draft is passed. It is expected that specific sanctions will be announced within this week. China has repeatedly opposed the US intervention in Hong Kong affairs.

How is the revised legislative decision different?

The final version of the draft National People’s Congress’s National Security Act’s legislative decision changed the prohibition of acts that endangered national security into actions and activities.
Wu Qiubei, a pro-Beijing People’s Congress representative, believes that adding the word activity will make the legislation more accurate and comprehensive. He emphasized that the focus of the law is to target crimes involving subversion, treason, cooperation with foreign forces, and Hong Kong independence.
However, Tian Beichen, a representative of the Hong Kong People’s Congress, said there was a problem with changing the draft content to “behaviors and activities.” He said that there are few incidents in mainland China, but the situation in Hong Kong is different. When a citizen participates in a legal procession or gathering, someone may suddenly commit an act that endangers national security. The participants of the original legal activity can’t avoid it, so it is unjust to violate the law.
Li Anran, the convener and legal counsel of the pro-democracy legal community in Hong Kong, believes that the original draft includes its activity. After the amendment, the word activity is added to make the draft more clear. He said that literally, behavior is one person, and activity is organized, and more than one person participates.

Can foreign judges not hear?

So far, neither Beijing nor the Hong Kong Government has clarified which aspect is responsible for law enforcement and judicial work. Reuters quoted news earlier that after the National Security Act was concluded, foreign judges in Hong Kong may be excluded from participating in the trial of Hong Kong’s national security-related cases, which has caused concern in Hong Kong’s legal profession.
Ye Qiaoqi, vice chairman of the Hong Kong Bar Association and senior barrister, said that the judges judged the case according to the law and had nothing to do with nationality. They did not understand the reasons for prohibiting foreign judges from handling national security cases. Restrictions may damage the independent image of the Court of Final Appeal and Hong Kong. They may affect the communication and work of judges in common law jurisdictions in the future.
Professor Chen Wenmin of the Faculty of Law of the University of Hong Kong believes that not allowing foreign judges to try cases will significantly impact the legal system of Hong Kong. He said that the judicial independence of Hong Kong is not related to the nationality of judges. The existing mechanism can handle whether it is biased. The question is whether the Patriotic Judge will hear the relevant cases, making people doubt the court’s fairness. It also questions whether the appropriate patients should be dealt with by Chinese judges if they are appealed, fearing that it will weaken the public’s confidence in the judicial system…

At the same time, he said that it is difficult for the Hong Kong courts to deal with the National Security Law enacted by the National People’s Congress. This will seriously weaken the jurisdiction of the Hong Kong courts because the laws are included in Annex III of the Basic Law, and the relevant laws exceed the jurisdiction of the Hong Kong courts. He was worried that the National Security Law would not be subject to human rights law and violate the Basic Law. He said that he has confidence in the Hong Kong courts and will handle the issues covered by the National Security Law by common law, but believes that Beijing may also reinterpret the judgment of this once the Hong Kong National Security Law is passed law.
Chen Wenmin believes that the provisions of the draft “National Security Law” are extensive and ambiguous. Law enforcement and judicial authorities can use different interpretations of “acts and activities” that endanger national security, describing the provisions as “the devil is in the details” In the process, Hong Kong people are unable to participate in the enactment of laws, which can understand Hong Kong people’s concerns.
The former deputy director of the Hong Kong Basic Law Committee, Liang Aishi, believes that when a judge takes office, he must take an oath of allegiance to the SAR and support the Basic Law. He cannot see that foreign judges will try to deal with relevant cases, and there will be no conflicts of interest. The court system will also find appropriate judges to deal with a particular topic.

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