Hong Kong Bar Association questions Beijing’s legal power to enact national security law, identifies ‘problematic’ features

Police officers patrol the Eastern artificial island of the Hong Kong-Zhuhai-Macau Bridge. Photo: Dickson Lee. Sketched by the Pan Pacific Agency.

HONG KONG, May 25, 2020, SCMP. Beijing appears to have no legal authority to enact its proposed national security law for Hong Kong by promulgation, according to the city’s professional body of barristers, who on Monday said the plan contained “a number of worrying and problematic features,” South China Morning Post reported.

In a strongly worded statement, the Hong Kong Bar Association also expressed concern over suggestions that mainland agencies would be set up to safeguard national security within the city, saying it was “entirely unclear” how that arrangement would comply with Article 22 of the Basic Law, which stipulates that Beijing departments not interfere in local affairs.

The association said it was “entirely unclear”how the proposed agencies set up in Hong Kong would operate under and be bound by the city’s laws, whether they would have power of enforcement, and whether such powers would be limited by the laws currently in force in the city.

The Bar Association’s rebuke came days after Beijing dropped a political bombshell by unveiling a resolution to “prevent, stop and punish” threats to national security by outlawing acts of secession, subversion, foreign interference and terrorism.

Rather than asking the city to craft its own law, the central government, during the opening of its annual legislative sessions, announced it would promulgate a national security law by listing it in Annex III of the Basic Law, the city’s mini-constitution, bypassing Hong Kong’s legislature.

But the lawyers’ group argued the National People’s Congress’ top body had no legal power to do so.

It pointed to Article 18 (3) of the Basic Law, which states that laws added to Annex III should be confined to those related to defence and foreign affairs as well as matters outside the limits of the city’s autonomy, and Article 23, which stipulates the city government should enact laws “on its own” to prohibit much of what the new legislation seeks to address.

“The Hong Kong national security law as proposed in the draft decision [by the National People’s Congress] would appear to contain matters covered by Article 23 of the Basic Law, and it is within the autonomy of the [city] to enact the relevant laws,” the association said, suggesting the central government appeared to have no power to add the proposed bill under Annex III.

The Bar Association also pointed out there was no assurance that the proposed legislation – given its status as a national law – would comply with provisions of the International Covenant on Civil and Political Rights, to which Hong Kong is a signatory, or that there would be a public consultation before promulgation.

The absence of public consultation would stand in sharp contrast to the city’s attempt to legislate a national security law on its own in 2003, when an extensive consultation process was undertaken. The bill was ultimately withdrawn after 500,000 people took to the streets to oppose it.

“This is unprecedented. The public must be allowed the opportunity to properly consider and debate proposed laws which affect their personal rights and obligations,” the association’s statement read.

It also questioned a line in Beijing’s Friday resolution that named the judiciary alongside the administration and legislature as Hong Kong organs required to prevent, stop and punish acts endangering national security, arguing it had given rise to perceptions the courts were “being or will be instructed to act in a particular way”.

Hong Kong leader Carrie Lam Cheng Yuet-ngor on Friday assured members of the public that Hongkongers’ legitimate rights and freedoms would not be affected by the new law, reiterating it would not undermine the city’s rule of law and governing “one country, two systems” principle.

But the Bar Association said Lam’s assertions were made “without further elaboration”, and urged the government to address the fundamental constitutional and legal concerns it raised “as a matter of urgency”.

In response, a spokesman for the Department of Justice argued that national security was outside the limits of the city’s autonomy, and was a matter under the purview of the central government.

“In view of the current situation in Hong Kong and the difficulty faced [in completing its] own legislation for safeguarding national security in the foreseeable future, the central authorities have the right and duty to introduce a national law to improve at the national level the legal framework and enforcement mechanisms for national security for the [Special Administrative Region],” he said.

The spokesman added that the proposed legislation was also under the ambit of “defence and foreign affairs as well as other matters outside the limits of the autonomy of the region” as set out in Article 18(3) of the Basic Law.

He said it was inappropriate for anyone to make “unwarranted speculation” on the content of legislation, given the bill had not been made public at this stage.

Speaking at a briefing on Monday, Xie Feng, commissioner of China’s Ministry of Foreign Affairs in Hong Kong, underscored the judiciary’s independence, saying the new law would not “change the legal system in Hong Kong … or affect the independent judicial power, including the right of final adjudication exercised by the judiciary in Hong Kong”.

The proposed national security law was unveiled after almost a year of increasingly violent social unrest in Hong Kong, which was sparked by a now-withdrawn extradition bill and later morphed into a wider anti-government movement.

While Beijing officials said the law would prevent Hong Kong from being turned into a “base of infiltration”, opposition politicians and members of the international community have warned the bill could effectively mark the death of the one country, two systems model.

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