Editor's note: After the National Security Law for the Hong Kong Special Administrative Region (HKSAR) passed, it has ignited debate, but actually if one studies seriously about the articles in the law, he/she may note that it has safeguarded the "One Country, Two Systems." Henry Litton is an ex-judge of the highest court in Hong Kong. The article reflects the author's opinions, and not necessarily the views of CGTN. This is Part II of his analysis.
The new law has 66 Articles. Its terminology, in places, lacks the precision one finds in common law statutes. It leaves much room for judicial interpretation.
In a sense, it creates a dynamic tension between its own wording and that found in the Basic Law for Hong Kong. This is likely to create particular challenges for the Hong Kong courts when dealing with enforcement later on.
The Office for Safeguarding National Security, an organ of the central government, has established in Hong Kong. It has a wide role to play, such as "collecting and analyzing intelligence and information concerning national security", as stated in Article 49(3).
But it has also a less well-defined function, "overseeing, guiding, coordinating with and providing support to the Region in the performance of its duties for safeguarding national security", as stated in Article 49(2).
Hence, the crucial question remains: Has the Office been given executive powers exercisable within the Hong Kong justice system?
One sees at the outset, in Article 1, the statement of general principles. The purpose of the law is to ensure: "The resolute, full and faithful implementation of the policy of "One Country, Two Systems" under which the people of Hong Kong administer Hong Kong with a high degree of autonomy."
The last stated general principle is "protecting the lawful rights and interests of the residents of the Hong Kong Special Administrative Region."
These statements of principle inform all the following articles – including Article 49(4) referred to earlier.
Except in a very narrow category of cases (to be dealt with later) the entire process of investigation, prosecution and trial of cases under the new law is in the hands of the Hong Kong authorities.
This law is not concerned with crimes against the person or property as such. A case of arson, damage to public property, attempted murder, inflicting grievous bodily harm etc., standing alone, would not be processed under this law, unless it can be shown to damage national security – a much wider offense.
The crimes of subversion, terrorism, collusion with foreign entities etc. are aimed at the state. Criminal intent is involved. These are very serious crimes attracting long terms of imprisonment. A prosecution is not to be lightly undertaken. To charge a person under the new law, the written consent of the Secretary for Justice is required, as states in Article 41.2.
The notion that a young man doing nothing more than waving a banner in the streets could be prosecuted and convicted under this law is absurd, whatever that banner might say.
Whilst instances of arson, damage to public property, taking part in a riotous assembly, waving a banner etc., standing alone, would not come under the new law, they might constitute evidence of a more serious crime, such as a conspiracy to bring destruction to Hong Kong: this would, of course, be a crime against national security.
Chapter V of the new law deals with the Office for Safeguarding National Security. Within this Chapter is Article 55 which has aroused much hostile comment.
It deals with three very narrow categories of cases where, on the initiative of the Office for Safeguarding National Security, the prosecution takes place in the Mainland before a court designated by the Supreme People's Court. Investigation having been initiated by that Office in Hong Kong, "legal documents" issued by the Mainland authorities "shall have legal force" in Hong Kong, as stated in Article 57.
Assume, for instance, that the Mainland court issues an order that a suspect, residing in Hong Kong, be taken into custody and be transferred to the Mainland for trial; the Hong Kong police is dutybound to enforce the order; the suspect is taken into custody pending transfer to the Mainland.
The suspect is entitled to have legal representation from the outset: Article 58. Assume that the lawyer immediately takes out a writ of habeas corpus requiring the police to show cause why the defendant should not be released. Would it suffice for the police to simply produce the Mainland court order?
Assume, on the face of the court order, that the alleged crime clearly falls outside the three categories of cases under Article 55, can the Hong Kong court intervene and order the suspect's release? This is a grey area, for Article 28 of the Basic Law is quite clear: "The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment …"
Assume, for instance, that the prosecution is based on Article 55(1).
"(1) The case is complex due to the involvement of a foreign country or external elements, thus making it difficult for the Region to exercise jurisdiction over the case".
Whether there is "involvement of a foreign country or external elements" is a plain matter of fact. Assume there is none: Surely, by any standards, the entire process initiated by the Office for Safeguarding National Security is unlawful.
But then there is Article 60 which says: "The acts performed in the course of duty by the Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region and its staff in accordance with this Law shall not be subject to the jurisdiction of the Hong Kong Special Administrative Region."
This immunity is confined to acts performed by the Office. It says nothing about acts of a Mainland court.
Here, then, is an example of the dynamic tension between the processes under the new law and the Basic Law which the Hong Kong courts may be required to resolve: upon that resolution will depend the direction in which the principle of "One Country, Two Systems" is tilted.
There is this final point to be made. Article 65 says: "The power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress."
But, in the example given above, it is not a question of interpreting the new law. The law is clear enough: A prosecution under Article 55(1) involves either a foreign country or external elements. Without such factors, the legal foundation for prosecution is gone. Nothing in the new law suggests that arbitrary prosecution or arrest is lawful.
The principle of "One Country, Two Systems" is a living concept. It evolves with changing times. What the Hong Kong Judiciary is called upon to do, in effect, is to calibrate the system so that it comfortably accommodates Hong Kong cultural values with national aspirations. This requires great sensitivity.
In summary, what can be said with confidence is this: The declared aim of the new law is to strengthen the application of "One Country, Two Systems" in Hong Kong. This leaves the possibility – or, perhaps, more than the possibility – that the policy will endure long after 2047, with the common law as the governing system for Hong Kong during the life-time of the young people living today, and beyond.
For this to eventuate, the common law must be seen to act effectively in coping with problems as events evolve. Hence, the judicial officers selected to be on the Article 44 panel have a huge responsibility. Upon their shoulders may well rest the long endurance of the "One Country, Two Systems" formula as applied to Hong Kong.
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