Thursday, March 5, 2020

Cora Chan and Fiona de Londras on Building Rule of Law Resilience Through Institutions; A Proposed Institutional Infrastructure for National Security Legislation (new book chapter)

"Building Rule of Law Resilience Through Institutions; A Proposed Institutional Infrastructure for National Security Legislation"
Cora Chan and Fiona de Londras
Introduction: Institutions can help to embed and protect the rule of law, even in the face of seemingly oppressive and worrying legislative moves to 'protect' security. Of course, many of those institutions - courts, the legal profession, the international human rimight infrastructure - have already been canvassed in this collection as possible bulwarks against the encroachment of China's national security on Hong Kong's rule of law. However, in this chapter we wish to propose the construction of a new institutional architecture that is designed systematically to build rights-based and rule of law concerns into the context in which an Article 23 law or similar legislation would operate and China's national security imperatives might 'leak' (formally or informally) into the law, politics and practice of governance in Hong Kong. As is well-known, Article 23 of the Basic Law provides that Hong Kong shall enact law on its own to prohibit any act of treason, secession, sedition, subversion, against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies. This is widely understood as an obligation to introduce national security law in Hong Kong, although that obligation has not yet been fulfilled. 
     In undertaking our task in this chapter, we recognize that institutions alone are not sufficient to reorient process of law, policy and operation that have at their heart an oppressive approach to protecting national security that suppresses, among other things, political dissent and organizing. However, neither is the text of a law itself, so that even if - as has been widely proposed - an Article 23 law is drafted in a way that minimizes its potential disruption to the ordinary criminal law and the rule of law, institutions will still be important as it is through them that the law will be interpreted, applied, reviewed, revised, resisted and realised. Institutions are the places where everything happens; state power flows through institutions (such as police forces, intelligence agencies and executive bodies), is formally constrained through institutions (such as courts and political institutions), and is called to account also through informal institutions (such as civil society and the electorate). Thus, we start from the institution that institutions founded on sound principles, effectively constructed, and independent in their operations - that is, institutions that are 'strong' in the language of the Sustainable Development Goals - have the capacity at the very least to inculcate participatory, reflexive, right-based modes of working that in turn may temper the operation of repressive security laws and policies. 
     We start this chapter by considering the role of institutions in a system that is committed to sustainable security, and then consider the existing institutional infrastructure in Hong Kong in the light of this. That consideration reveals system concerns that, we argue, must be addressed if there is to be any chance of Article 23 legislation or the like being something less than a license for oppressive governance by Beijing in Hong Kong. Some of those difficulties are reflections of broader challenges of constitutional infrastructure between Hong Kong and Beijing which take on a particular urgency and challenge in the context of security, while others are subject specific, focused on the particular dynamics and anxieties of security as a rhetoric and a mode of governance. Having mapped the challenge around institutional infrastructure in these first two parts, we then go on to propose a new institutional architecture within which national security laws in Hong Kong might operate, arguing that it should be designed to achieve four key aims: effectiveness, accountability, transparency and participation.
     In this exercise we are purposefully not constrained by concerns of what is politically likely or feasible; instead, we aim to map out an institutional model to which, we argue, Hong Kong should aspire if the 'one country, two systems' model of constitutional pluralism and accommodation that underpins the relationship with China is to sustain in the security context. However, this is not to suggest that we assume a benign or governance-oriented disposition on the part of Beijing to institutions within which a national security law might operate, we recognize that, to a government so inclined, 'strong' institutions might mean institutions that bolster its power and approach to security. As clearly outlined by Hualing Fu in this collection, China's approach to national security is one in which many of the fundamental elements of politicisation, resistance, dissent, and protest that attempt to discipline state security power in other contexts are, themselves, susceptible to being seen as security risks that require suppression. In other words, we know that institutions have capacity to compound oppressive and repressive regimes. They do not, in and of themselves, guarantee or even provide forms of transparency, accountability, reflection and participation that we will argue are the hallmark of the kinds of institutions that might provide resilience to the rule of law of Hong Kong, or, indeed, elsewhere. Nor do they 'have minds of their own.' Instead, institutions (just like laws and all other elements of governance) are deeply dependent on political commitment to their effective deployment towards the goal of maintaining security while respecting (and strengthening) the rule of law. We are acutely aware that such commitment cannot be assumed in the context of the China - Hong Kong relationship...

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