Monday, February 27, 2023

Po Jen Yap on Judging Hong Kong's National Security Law (new book chapter)

"Judging Hong Kong's National Security Law"
Po Jen Yap
in The National Security Law of Hong Kong: Restoration and Transformation,
Edited by Hualing Fu Michael Hor (Hong Kong University Press, July 2022),
Chapter 7, pp. 149-166
Introduction: An hour before the twenty-third anniversary of the Hong Kong Special Administrative Region's (HKSAR) establishment, the Standing Committee of the National People's Congress (NPCSC) bequeathed a new National Security Law (NSL) to Hong Kong.  Presented as a "birthday gift", this offering was prepared behind closed doors - the details were not subject to any public consultation and the law as only unveiled before the awaiting population after it took effect.  Surprise!
     Secession, which includes independence advocacy, subversion of state power, which includes the use of unlawful means to seriously undermine the operations of "the body of central power of the People's Republic of China or the body of power of [the HKSAR]", and collusion with foreign governments, which includes the receipt of any funding or support from a foreign country to provoke by unlawful means hatred among Hong Kong residents towards the Central or Hong Kong Government are all national security penal offences now.  Terrorism has also been defined to include the sabotage of vehicular transport and traffic facilities for political ends.  For all four crimes, offenders face sentences of up to life imprisonment for grave violations.  Even non-Hong Kong residents based outside the jurisdiction are liable for prosecution if they commit any of these penal offences against Hong Kong.  A national security agency established by Beijing to gather intelligence can now operate legally in Hong Kong but must abide by local laws, though these mainland officials are not subject to local jurisdiction for acts performed in the course of duty.  The enforcement and prosecution decisions made under this NSL are entrusted to local officials and Hong Kong courts are also empowered to adjudicate the vast majority of cases brought under this law.  Most local criminal law procedures and human rights safeguards continue to apply.  But jury trial in individual cases can be replaced with a panel of three judges, and where state secrets are involved, all or part of the trial can be closed to the public, though the verdict must still be announced in open court.  In those rare serious cases where foreign governments are involved or the Hong Kong government is unable to enforce the law effectively, the Chinese procuratorate and courts are legally empowered to take over from local counterparts.  The law opens up the chilling possibility that for these exceptional cases, the offenders, if in Hong Kong, can be extradited to the Mainland to face trial.  Finally, the power of interpreting this national security law lies with the NPCSC, which expressly allows mainland officials to overrule the Hong Kong judiciary's interpretation of this NSL.
     As to be expected, responses to this NSL have been sharply divided.  Western media has largely portrayed the NSL as the "final nail in Hong Kong's coffin" and mourned the city's death.  On the other hand, Beijing loyalists fete the law as a "new social contract" that restores stability and recovers Hong Kong's "original aspiration of 'One Country, Two Systems."'
     In this chapter, I do not intend to engage with the histrionics or propaganda.  Neither do I seek to navel-gaze and portend the long-term impact - salubrious or deleterious - that the NSL would have on Hong Kong's economic and civic life.  My aim is more modest: I shall examine whether the NSL is constitutional and explore the options Hong Kong judges have in assessing its legality and interpreting its operative scope.
     In essence, my arguments are as follows.  First, it is defensible - as Albert Chen has argued - that the HKSAR's constitutional duty to enact national security laws "on its own" is subject to an implied requirement that this duty be fulfilled within a reasonable time, or the Central Government may intervene and legislate on the HKSAR's behalf.  But to be consistent, Beijing should also act unilaterally on another mothballed provision - Article 68 of the Basic Law (BL) - which guarantees the election of all members of the Legislative Council by universal suffrage.  Second, the insertion of the NSL into Annex III BL is problematic as the BL only authorises the inclusion of 全國性法律   - People's Republic of China (PRC) laws that have nation wide applications or effects.  Notably, the NSL only applies to Hong Kong and not to the Mainland.  Nevertheless, it will be a fool's errand for the Hong Kong courts to reject the NSL wholesale, or invalidate it in part, as Beijing can legally overrule the courts and oust those judges from future national security disputes.  Instead, Hong Kong judges should engage in a remedial interpretation of the NSL, such that the law's operative scope is read down and additional safeguards are judicially inserted into the legislation.  

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