National Security Law – questions remain

Hong Kong, 3 July 2020: As you will be aware, Hong Kong’s new National Security Law (NSL), enacted by the People’s Central Government in Beijing, came into force this week. Its aims are “preventing, suppressing and imposing punishment” with regard to secession, subversion, terrorist activities and collusion with foreign powers. Here are the key and salient points:

• Hong Kong will have a new Committee for Safeguarding National Security, supervised by Beijing and chaired by the Chief Executive. Its work will not be subject to judicial review.
• The police will set up a new national security department with powers that include phone tapping and covert surveillance with approval from the Chief Executive.
• Broadly defined acts of secession, subversion, terrorism, or colluding with foreign forces carry heavy penalties, with maximum terms of life imprisonment.
• Arson and sabotage of transport facilities, commonly seen during the recent civil unrest, will be considered terrorist acts.
• The Chief Executive will select a list of judges at each level of the courts to handle cases after consultation with the Committee for Safeguarding National Security and the Chief Justice.
• Certain serious cases in the High Court can be held before a panel of three judges rather than a jury; such cases can also be heard behind closed doors in certain circumstances.
• Hong Kong will have jurisdiction over most cases but suspects can be tried before Mainland courts in special circumstances.
• Beijing will set up in Hong Kong an Office for Safeguarding National Security to handle cases and its staff will not be subject to Hong Kong laws as they go about their work.
• Beijing will have final say in interpretation of the NSL.

The Hong Kong government has repeatedly stressed that it targets only a tiny minority of people and that criticism of the government or the NSL itself will not amount to an offence.

The NSL also states that “human rights shall be respected and protected in safeguarding national security” and that “the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration” which Hong Kong residents currently enjoy under the Basic Law “shall be protected in accordance with the law”.

While the Chief Executive will select the panel of judges to hear national security cases, Chief Justice Geoffrey Ma has pointed out that, in effect, nothing has changed. The Basic Law requires that all designated judges must come from the existing ranks of the Judiciary, for which appointments are made by the Chief Executive on the recommendation of the Judicial Officers Recommendation Commission, which is chaired by the Chief Justice. The Basic Law also calls for judges to be chosen for their judicial and professional qualities, not on the basis of any political considerations. The Chief Justice has also echoed earlier assurances from the Chief Executive that foreign judges will not be excluded from national security cases.

Following on from the government’s failed extradition bill which triggered Hong Kong’s protests last summer, Article 55 of the NSL has attracted much comment. This allows for cases to be tried in Mainland China if they are complex due to foreign involvement, involve a serious situation in which the Hong Kong government is unable to enforce the NSL, or feature a major and imminent threat to national security. Some clarity on this issue would be welcome.

There is also uncertainty about what sort of statements or banners would contravene the NSL. The government has suggested items displaying the words “Liberate Hong Kong; revolution of our times” – a phrase commonly used by protesters – are in breach of the new law as the slogan connotes independence.

In conclusion, I believe the watch words are interpretation and enforcement. The NSL appears to give the existing and soon-to-be-established bodies of authority considerable scope about how it will be interpreted and how rigorously it will be enforced. At present, there is much speculation and debate. Only in the coming weeks and months will we know the full scale of its impact.

Colin Cohen
Senior Partner
Boase Cohen & Collins