China has revealed some details of Hong Kong's national security law and is as bad as critics feared

China has revealed some details of Hong Kong’s national security law and they are as bad as critics fear

The law just closes the door, they argue, and is no different from what many other countries have in their books. Local officials and prominent businesses have thrown their weight behind the bill – invisibly – promising to leave the city better and in any case, would only affect a handful of people,,
On Saturday, China’s National People’s Congress (NPC), which is expected to pass the law in the coming weeks, gave Hong Kong a first look at its contents. Critics had every right to worry: According to the draft, the law will use the city’s valued independent legal system, allowing Beijing to repeal local laws while increasing its ability to quell political opposition.

Most controversially, the law gives Beijing the power to exercise jurisdiction over selected criminal cases, raising the likelihood that suspects will be extradited across the border for the first time in Hong Kong’s history to face trial and possible imprisonment in the mainland.

Fears of this have sparked protests against last year’s extradition bill proposed by the Hong Kong government. These protests eventually forced the law to be abandoned, but turned into wider anti-government unrest, which Beijing said forced the imposition of new national security regulations.

Anthony Dapyran, a lawyer and political analyst based in Hong Kong, described the new law as “a broad seizure of power from Beijing” on many of the key elements of government and society.

Writing on Twitter, he said the new law “effectively creates a parallel judicial system (s) and takes away powers of interpretation and final judgment outside Hong Kong courts.”

New system

When Hong Kong was handed over from British to Chinese rule in 1997, the city’s general law remained largely intact. The precedent remained in place, and protection under the new de facto constitution, the Basic Law, and various international treaties guaranteed a degree of justice and freedom not seen in China, where the conviction rate is north of 90%.

Until the National Palace of Culture acquires the ability to “interpret” a Basic Law, essentially rewriting it in certain cases, the central government had no jurisdiction over individual cases, nor could it prosecute crimes against Beijing that were not illegal in Hong Kong.

The new national security law would change all that. According to details released over the weekend, Chinese security authorities will have the power to “exercise jurisdiction” in national security cases “in specific circumstances”, while other prosecutions under the law will be heard by a panel of judges elected by a Beijing-appointed leader. .

It is not explicitly stated whether the suspects could face extradition to mainland China in such circumstances.

Although the draft invokes respect for the “rule of law” and various civil liberties, it also subordinates existing legislation to the national security bill, so that when there is a conflict, the national security law prevails. In practice, this may mean that when the National Security Prosecutor’s Office is in conflict with human rights protected under Hong Kong law, those rights are suspended.

Following a statement Saturday by Jerome Cohen, an expert in Chinese law, rejected “Eye candy” on human rights, stating that “the very provisions of the draft (law) seem to violate these protections.”

“The show has obviously become a takeover,” Cohen added.

Kevin Yam, a lawyer based in Hong Kong and a former congress of the Progressive Advocates Group, said the proposed law does not cost a legal interpretation, adding “there is nothing to analyze”.

“It’s just what they say it is,” he added. “And if they can’t do what they say when they want something, they’ll just change it in any way.”

Judicial maneuvers

Although there was no suggestion of a genuine public consultation or referendum on the bill, many of the provisions unveiled on Saturday seemed to target alleviating Hong Kong people’s fears of thisor at least facilitate its sale to the public.

Such regulations come amid huge propaganda efforts to sell the bill, such as posters and advertisements promoting it, plastered Hong Kong, and an obvious push from Beijing for Chinese companies to re-list on the city’s stock market, boosting the local economy.

In particular, the creation of a commission nominated by CEO Kari Lam to deal with national security cases may have been a nightmare for those who expressed concern that the bill would prevent foreign judges from hearing them. As part of the broader common law system, which also includes the United Kingdom, Canada, Australia and a number of other jurisdictions, Hong Kong periodically appoints distinguished “non-permanent” judges to the final court of appeal.

These judges are appointed by the executive director, but their presence is in some cases controversial in China, leading to calls for their removal or a ban on certain sensitive cases. By giving Lam the power to appoint judges to hear national security cases, the government essentially diverts the matter, allowing it to choose those judges who are considered the most loyal.

The Hong Kong Bar Association has blown up plans as “extraordinary” and a serious blow to the independence of the judiciary, stating that Lam would appoint a committee to oversee cases in which she herself is a stakeholder.
Speech to the local mediaThe head of the bar, Philip Dykes, said the law was a “recipe for conflict of interest” and would allow Lam to “take the cherry” that judges hear in the most controversial cases.
Alvin Yong, opposition MP and lawyer, said the proposal was a “clear departure from conventional traditions”.

Political persecution

The expansion of the power of Chinese courts and security services in Hong Kong raises even more concerns.

Allowing the Chinese security apparatus to operate in the city raises the spectrum of illegal persecution. Dissidents and activists in China often disappear from power or are threatened with arrest for sensitive events, and many journalists and lawyers are lured to “take tea” with the security services, during which they receive subtle threats about the potential consequences of their work.

Meanwhile, giving jurisdiction to Chinese courts “in specific circumstances” is likely to guarantee convictions in these cases. China’s legal system has been widely criticized for its lack of human rights protection, naked political persecution and an almost universal degree of condemnation. The country’s national security law itself has been widely interpreted in the past for activists, intellectuals and journalists.

Two Canadians prosecuted last week for spying are a good example of this, Michael Kovrig and Michael Spavor were arrested in late 2018, shortly after the arrest in Canada of Huawei CEO Meng Wanzhou. While China claims to have “solid” evidence against the two men, Canada views the case as “arbitrary” and politically motivated.
Kovrig and Spavor are also examples of how China’s national security legislation differs from that of democracies. Canada, for example, has laws against espionage and espionage and people were persecuted under them.
The difference is that these laws and the corresponding prosecutions must comply with these Canadian Charter of Rights and Freedoms, the draft law on the rights of the country and may be revoked if the court finds it unconstitutional.
This is not the case in China and may not happen in Hong Kong soon if the bill continues. While China points out some rights in its constitution, they are subject to the law, not more important. There is freedom of expression, religion and the press generally, but “may not prejudice the interests of the State”.

Similarly, Hong Kong guarantees its rights under the Basic Law by signing international conventions, but a national security law would repeal these protections.

Those who try to assert their constitutionally protected rights in China are often persecuted on the basis of national security, such as Nobel Peace Prize winner Liu Xiaobo, who died in 2017 after years in prison on charges of “inciting subversive activity of the state power.” Liu’s most famous work, Charter 08, co-authored by him, calls in part for judges to be able to “uphold the authority of the Constitution.”

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