Beijing’s national security law is game-changing for the Hong Kong executive body, judicial body, and the Police Force as specialised departments and new rules emerge.
Photo courtesy of Wpcpey from Wikimedia Commons / CC BY 3.0.
Passed by Beijing on Tuesday, the national security law instructs the Hong Kong government to launch divisions for policy-making, investigation and law enforcement, and prosecution concerning national security. The rules come after their formations may overrule the autonomous status and long-established systems of Hong Kong.
The Chief Executive establishes and chairs the Committee for Safeguarding National Security, a new organ primarily responsible for safeguarding national security and related affairs in Hong Kong. It is supervised by and held accountable to Beijing.
Article 14 lists the privileges of the Committee, states that its decisions are not subject to judicial review, and defines information relating to its work is exempted from disclosure. “No institution, organisation or individual in the Region shall interfere with the work of the Committee,” the Article adds.
Beijing will also designate a National Security Adviser who gives ‘advice’ on the Committee’s functions and sits in on meetings. A Secretary-General nominated by the Chief Executive and appointed by Beijing will head a secretariat under the Committee, according to Article 13.
The Committee’s duties include making work plans, formulating policies, and strengthening the legal system and enforcement mechanisms in the name of safeguarding national security.
High-ranking officials such as the Chief Secretary for Administration, the Secretary for Justice, and the Commissioner of Police are the other members of the Committee.
Law enforcement body
Article 16 introduces the department for safeguarding national security under the Police Force. The Chief Executive has to write to seek the opinion of the Office for Safeguarding National Security before appointing the department head, who would swear to “observe the obligation of secrecy.”
The department and the Police Force are granted a range of broad powers by Article 43. They include search powers, restricting travels, freezing and confiscating property, ordering service providers to delete information or give assistance, requiring overseas political organisations to provide information, and carrying out secret surveillance on a suspect. They can, “on reasonable grounds”, require a suspect to answer questions and give information, which may contradict the right to silence the Common Law guarantees.
Some of its tasks consist of collecting and analysing intelligence regarding national security and conducting investigation and “counter-interference” investigation on related offenses. It also “performs other duties and functions necessary for the enforcement of this Law.”
The department is authorised to “recruit qualified professionals and technical personnel from outside the Hong Kong Region” for assistance.
Two systems? Only one matters
The security law overrides the local law as Article 62 states that “the national security law shall prevail where provisions of the local laws of Hong Kong are inconsistent with this Law.” The Standing Committee of the National People’s Congress owns the power of interpretation of the law, according to Article 65.
A specialised prosecution division is created by the Department of Justice to perform prosecution. Prosecutors are appointed by the Department of Justice with the consent of the Committee for Safeguarding National Security. Again, the Chief Executive is subordinate to the Office and must write to the Office for Safeguarding National Security before appointing the head.
According to Article 44, the Chief Executive would pick judges and magistrates from all levels of courts to handle national security cases for a one-year term. Judges who have made “any statement or behaved in any manner endangering national security” would be disqualified.
Article 42 also says no bail would be granted to a suspect unless the judge is convinced that the person will stop committing acts endangering national security, which is inconsistent with the right of being admitted to bail stated in the Criminal Procedure Ordinance and the common law presumption of innocence.
The Secretary for Justice can issue a certificate to assemble a panel of three judges for a trial instead of a jury if the case concerns State secrets or diplomatic matters, Article 46 says. The determination of whether a case belongs to this category lies in the hands of the Chief Executive.
Trials that “involve State secrets or public order” will be closed to the public and the media, but judgments would still be announced in an open court.
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