When Beijing announced it would impose a national security law on Hong Kong six weeks ago, many people feared the legislation could extend China’s authoritarian reach over the semi-autonomous city and undermine its cherished rule of law.
Some Hong Kong officials tried to allay those concerns, despite admitting they had not yet seen a draft of the law – which was written behind closed doors in Beijing. With the full text of the law finally available for dissection, however, a number of legal experts have found their worst fears confirmed.
“(It’s) even worse than the worst-case scenario I had expected,” Eric Cheung, a legal scholar at the University of Hong Kong, said on Facebook hours after the law was released late Monday, adding the legislation was “full of features of China’s socialist legal system, and is poles apart from the spirit and the legal language of Hong Kong’s common law.”
Since its handover to China in 1997, Hong Kong has maintained the common law system inherited from the territory’s 150 years under British colonial rule. Its independent judiciary and robust rule of law have long been deemed key to the city’s success as a global financial center.
Hong Kong and Beijing officials have argued the law is necessary and overdue, and promised it will only affect a tiny minority of Hong Kongers, while returning “stability and prosperity” to the city.
“The national security law is a crucial step to ending chaos and violence that has occurred over the past few months,” Carrie Lam, the city’s chief executive, said Wednesday. “It’s a law that has been introduced to keep Hong Kong safe. The legislation is lawful, constitutional and reasonable.”
Chinese officials have stressed the national security law is “tailor-made” for Hong Kong, and is different from the Chinese version enacted in the mainland. But in many ways, the legislation still bears a serious resemblance.
And with the law now in force, the city – and its legal system – is facing a new reality.
In China, the judiciary is under the “absolute leadership” of the Communist Party. Political loyalty to the party is a top requirement for judges. Courts are seen first and foremost as a “political organ,” according to the country’s Chief Justice Zhou Qiang.
Zhou has even warned judges against the idea of an independent judiciary – calling it a Western “trap.”
“We should resolutely resist erroneous influence from the West, such as ‘constitutional democracy,’ ‘separation of powers’ and ‘judicial independence,’” Zhou, the head of the Supreme People’s Court of China, told legal officials in 2017.
Chinese courts – along with prosecutors and police – are overseen by the party’s powerful Central Political and Legal Affair Commissions and their local branches, which frequently make the call on political sensitive cases like national security.
“In these cases, the courts and the prosecutor’s offices don’t have room to say much,” said Teng Biao, a Chinese human rights lawyer who now lives in the United States. “It is all controlled by the Communist Party.”
Unlike on the mainland, Hong Kong courts operate independently under a common law system similar to the UK and Australia. Under the national security law, Hong Kong’s leader will appoint a new panel of judges to handle national security cases – which critics said could enable the government to pick judges that are potentially sympathetic to particular issues.
“The independence of the judiciary is undermined,” the Hong Kong Bar Association said in a statement Tuesday.
Vaguely and broadly defined crimes
In China, national security crimes are so vaguely defined that they have previously been used by authorities as a pretext to crush dissent, jailing democracy advocates, human rights lawyers, social activists and journalists.