The powerful Office for Safeguarding National Security can initiate investigations on national security offenses and request China’s judiciary to rule directly, completely circumventing Hong Kong’s judiciary system.
Photo courtesy of Baycrest / CC BY-SA.
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China’s rubber-stamp parliament passed the national security law for Hong Kong on Tuesday. The Central Government will establish the Office for Safeguarding National Security. This office will exercise a higher level power over investigations and judicial decisions on related matters for Hong Kong, a semi-autonomous region that operates a separate legal system from China. The new office will circumvent the Hong Kong police, prosecution and judiciary, negating a distinction at the heart of ‘One Country, Two Systems’.
Funded and supervised by Beijing, the Office serves to “perform its mandate for safeguarding national security and exercise relevant powers in accordance with the law.” According to Article 49, the tasks include accessing developments concerning safeguarding national security, providing proposals on strategies and support to the Hong Kong government, and “collecting intelligence and information.” The Hong Kong government is obligated to build in mechanisms and coordinate with the Office.
The Office can also “handle cases concerning offence endangering national security in accordance with the law.” Secession, subversion, terrorist activities, and collusion with foreign forces are the offences articulated in the legislation.
On the offensive
Article 40 stipulates that the power to prosecute offences remains in the hands of courts in Hong Kong. However, the Office could step in under three conditions: Where the involvement of external forces makes the case complex, where the Hong Kong government is unable to execute the law due to occurrence of serious situations, and where China faces “a major and imminent threat to national security.” Definitions of what constitutes ‘complex’ or ‘major’ are lacking.
In such a scenario, the Supreme People’s Procuratorate and the Supreme People’s Court, the highest national level agencies in the legal aspect of China, would designate relevant “bodies” to be in charge of prosecution and adjudication.
The Chinese Criminal Procedure Law would then apply to procedural matters. Legal documents issued by the authorities would have legal force in Hong Kong. Institutions, organisations and individuals are bound to comply with measures taken by the Office.
Although there is no literal reference to extradition to China, it implies a prospect of it.
“Mainland criminal procedures will be applied in such cases, in accordance with Articles 55-57, and this raises concern as to whether the rights of the accused to a fair trial will be adequately protected or respected,” says the Hong Kong Bar Association in its statement in response to the national security law.
Above and outside the (Hong Kong) law
Article 60 specifies the privileges the Office and its staff would enjoy. The acts performed in the course of duty would not be subject to observance by Hong Kong’s legal authorities, jurisdiction and its decisions. Also, a person with an identification document issued by the Office would be exempted from “inspection, search or detention by law enforcement officers of Hong Kong.” The Bar Association says that it means “some people are held out to be above the reach of local law.”
The Office would need to “take necessary measures to strengthen the management of and services” for foreign organisations in Hong Kong and abroad including NGOs and the media, says Article 54.
The Basic Law, a mini-constitution of Hong Kong, has been the core of the ‘One Country, Two Systems’ principle. In theory, the China socialist system and national law are inapplicable in Hong Kong where the Rule of Law and the independence of the judiciary are highly regarded. The passing of the national security law by Beijing under Article 18 of the Basic Law might cross that line.
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