The announcement made in May this year that Beijing would enact national security laws for Hong Kong aroused hysteria worldwide. One wonders whether this came from ignorance or malice.
Every country on earth has national security laws.
For more than 20 years, the Hong Kong government had failed to implement Article 23 of the Basic Law ( the regional constitution for Hong Kong ) which required the Region to enact laws “on its own” to prohibit a range of criminal acts aimed at endangering national security.
The announcement in May was against the background of extreme violence lasting many months in the streets of Hong Kong, to the terror of the general population.
Parts of Hong Kong resembled war-zones, with the police under constant attack. Loss to the ordinary citizen and to the Region measured in the hundreds of millions of dollars. When Covid-19 intervened in February this year, criminal activity continued though on a diminished scale.
The police force was over-stretched, the justice system overwhelmed. By October last year, after months of turmoil, thousands of arrests had been made but only a handful of persons had been charged and brought to court for trial. An attempt by the Chief Executive to assist the police in identifying culprits, by promulgating a law forbidding face-covering in public gatherings, was knocked back by the High Court.
The declared aim of the rioters was to destroy the police force and bring down the Hong Kong administration. There was firm evidence that external hostile forces were behind the movement, fuelling and funding the rioters.
Hong Kong had ( and still has ) in its statute book national security laws left over from the colonial era. But these were totally inadequate to deal with the situation.
The announcement made by the Standing Committee in May noted ( with remarkable restraint ) that national security risk in the Hong Kong SAR had “become a prominent problem”.
Seeing that the Regional government was incapable of dealing with the dire situation, failing to protect the lives and livelihood of the ordinary citizen, what was the Central Government to do?
One solution was, obviously, to declare a state of emergency under Article 18.4 of the Basic Law and issue an order applying “national laws in the Region”, bring in the armed police from across the border and thus end, in effect, the policy of One Country Two Systems as applied to Hong Kong.
The Central Government chose the opposite course. It enacted the new law. The declared aim was to “fully and effectively implement the principles of One Country Two Systems, the People of Hong Kong Governing Hong Kong and A High Degree of Autonomy for the Region.”
The May announcement specifically mentioned that in enforcing the law through the Hong Kong courts, common law principles such as the presumption of innocence and other safeguards would apply.
Looking at that announcement broadly, and objectively, what it shows is this: All three branches of government in Hong Kong – the Executive, the Legislature and the Judiciary – had failed in their functions to safeguard national security. The situation called for urgent action. It thus became necessary for the Central Government, with sovereign responsibilities, to intervene.
Any calm and thoughtful reaction to the May announcement would have been: “Well, given the terrible situation in Hong Kong, that all sounds fair and reasonable”; the sceptical critic might have remarked: “let’s see what the actual text of the law says” and he might even have added: “the devil is in the details”.
But Lord Patten, former Governor of Hong Kong, even before the ink was dry, issued an immediate statement declaring this to be “a complete destruction of the joint declaration”: referring to the agreement between Britain and China signed in December 1984 dealing with China’s resumption of sovereignty over Hong Kong in July 1997. This was echoed by statements from other Western leaders. The global media then picked up the tune.
The text of the new law was eventually published on I July. A headline in the Economist of July 4-10, 2020 proclaimed: “Beijing’s Assault on Hong Kong”. A leading editorial in The Australian ( Australia’s national newspaper, July 10 ) bore the title: “China scores crushing One Country One System blow”.
Item after item, leading news outlets such as the BBC and the ABC voiced the same theme, referring to “pro-democracy demonstrators” as if the new law was aimed at suppressing peaceful protest, without the least reference to the murderous acts and large scale destruction being wrought in Hong Kong.
It is, of course, legitimate to analyse the new law and criticize aspects of it. But a law aimed at “crushing Hong Kong”, one of China’s most prosperous regions? To weaken a foremost financial centre of the world? What purpose would that serve?
The new law has 66 Articles, and is harsher in tone and substance than most people expected to see. 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, established in Hong Kong, has a wide role to play, such as “collecting and analysing intelligence and information concerning national security”: 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”: Article 49(2).
Hence the crucial question remains: Has the Office been given executive powers exercisable within the Hong Kong justice system?
Article 49(4) says that the mandate of the Office includes:
“handling cases concerning offence endangering national security in accordance with the law”.
The expression “handling cases” is wide and amorphous. If it meant, for instance, prosecuting offenders in the Hong Kong courts, that would be contrary to the general principles set out in Article 1 of the law and would set up a clash with the Basic Law.
Leaving aside these reservations, 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 offence.
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: 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: 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 this:
“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. No wonder that the new law has conferred additional responsibilities on the Chief Executive in the shape of Article 44.
Article 44 has aroused much controversy. It requires the Chief Executive to designate, in effect, a new panel of judicial officers – from magistrates on up to the judges of the Court of Final Appeal – chosen specifically to handle cases concerning offences endangering national security. The term of office is one year – necessarily short, as this is an innovation.
Critics have said that this interferes with judicial independence. The concept of “judicial independence” is much misunderstood. It has everything to do with the exercise of judicial power, the performance of judicial functions, and nothing to do with the institution of the judiciary as such. The judiciary does not stand apart from the other major organs of government. As Jonathan Sumption ( Lord Sumption, former judge of the English Supreme Court ) puts it in his book Trials of the State:
“It is a vice of lawyers that they think and talk about law as if it was a self-contained subject, something to be examined like a laboratory specimen in a test-tube. But law does not occupy a world of its own. It is part of a larger system of public decision-making. The rest is politics: the politics of ministers and legislators, of political parties, of media and pressure groups and of the wider electorate.”
To reshape the function of the judiciary, to better accommodate it to the larger system of public decision-making, is an act of government. It has nothing to do with judicial independence.
The Basic Law Article 85 puts the position accurately when it says:
“The courts of the Hong Kong SAR shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions”.
As the Chief Justice in a statement published in early July points out, all judicial officers, past and present, have taken the judicial oath and have been appointed on the basis of their judicial and professional qualities. Political considerations have never come into the equation.
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.
Henry Litton CBE, GBM is a retired permanent Judge of the Hong Kong Court of Final Appeal. Litton founded the Hong Kong Law Journal in 1971. In 2019, Litton published the book ‘Is the Hong Kong Judiciary Sleepwalking to 2047’ in which he criticised numerous aspects of Hong Kong's legal system, focusing particularly on the misuse of judicial reviews in recent years.
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