National security law: HK courts have fine line to walk adjudicating cases involving new legislation, legal experts say

03-Jul-2020 Intellasia | South China Morning Post | 6:02 AM Print This Post

Hong Kong’s courts could find themselves in a difficult position as they attempt to interpret clauses of Beijing’s tough new national security law at future trials, legal experts in the city have warned.

Article 65 of the law, which came into effect on Tuesday night, states that power to interpret the legislation is vested in the National People’s Congress Standing Committee.

But a senior Hong Kong legal source said local courts would still be expected to interpret the legislation when adjudicating trials related to national security, much as they have been responsible for interpreting clauses in the city’s Basic Law, its mini-constitution.

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“The courts will be put to the test when there is a need to apply the law in the process of adjudicating national security cases,” the source said.

The new legislation is intended to stop and punish acts of secession, subversion, terrorism and collusion with foreign forces to endanger national security, and carries a maximum penalty of life imprisonment.

“Hong Kong courts usually adopt a narrow interpretation of criminal law offences and are inclined against a wide interpretation,” the source said. “It means the defendants in criminal law cases are in a relatively advantageous position.”

But there was a real risk Beijing could step in and offer its own interpretation if “unhappy with the verdicts handed down by Hong Kong courts,” the source said.

Fu Hualing, law dean at the University of Hong Kong, said he expected local judges to employ common law principles when interpreting the law’s provisions during national security trials, but pointed to recent precedent in which local decisions had been thwarted from above.

“The risks of possible interpretation of the law by the standing committee is similar to those arising from the controversy over the Hong Kong courts’ interpretation of Basic Law provisions,” he said. “In the final analysis, it’s a matter of trust in the ‘one country, two systems’ formula.”

In November, the standing committee slammed a Hong Kong High Court ruling that declared an anti-mask law aimed at anti-government protesters attempting to hide their identities unconstitutional, insisting only the national legislature had the right to rule on issues of constitutionality.

Yang Guang, spokesman of the State Council’s Hong Kong and Macau Affairs Office, Beijing’s highest policy office on Hong Kong matters, warned that the ruling would have a “serious and negative sociopolitical impact”.

A spokesman for Beijing’s liaison office in Hong Kong also weighed in, urging the city’s executive, legislative and judicial branches to respect the standing committee’s decisions when exercising their power.

Andrew Li Kwok-nang, Hong Kong’s first postcolonial chief justice, said at the time it would be “surprising and alarming” if local courts were left with no power to hold legislation invalid.

While the High Court’s decision forced police to suspend enforcement of the regulation for a period of months, the Court of Appeal ultimately ruled the law was legal, provided it was aimed solely at those attending unlawful gatherings.

At a Wednesday press conference, meanwhile, Secretary for Justice Teresa Cheng Yeuk-wah was pushed to explain some finer points of the new national security law, including what constituted “hatred” in Article 29, which deals with collusion with foreign countries or external elements.

Under that article, provoking hatred towards either the central or local government by “unlawful means” would be a violation of the law, which carries penalties ranging up to life in prison.

Cheng, however, had no easy answers.

“Whether a speech or an act constitutes hatred, we have to look at the whole article to determine,” she said.


Category: Hong Kong

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