China “in very special circumstances and in very few cases” must have the power to exercise jurisdiction over offences in Hong Kong that seriously endanger national security, a senior Chinese official told a conference on Monday.
Deng Zhonghua, deputy head of China’s Hong Kong and Macau Affairs Office, stressed that the national security law will “have the authority and status that cannot be challenged” and no Hong Kong laws shall contravene it.
China’s parliament passed a plan in late May to impose a national security law on Hong Kong to target “acts and activities” that it sees as threatening national security, including secession, subversion, terrorism and foreign interference.
The plan, which bypassed Hong Kong’s legislature, would also allow Chinese national security organs to set up agencies in the city. The laws are expected to be enacted this summer before the September election of the legislature.
China insists such laws are necessary to stop Hong Kong’s year-long, sometimes violent, anti-government protests, which it alleges are mobilised by “foreign forces” and threaten national security.
In his original address, Deng said the laws would give national security agents set up by the Chinese and Hong Kong authorities’ both enforcement and judicial powers, although the words “judicial power” disappeared from his officially published speech.
But on Wednesday, Hong Kong’s sole delegate to China’s top legislative body, Tam Yiu-chung, said people who breach the national security law, particularly in cases involving foreign interference, could be extradited to mainland China for trial “if the (Chinese) government thinks it is necessary.”
Hong Kong’s leader, Carrie Lam, said the law would “not be retroactive under normal circumstances”.
The senior officials’ rhetoric has caused widespread unease in Hong Kong, with analysts saying the changes would dismantle the existing system – its rule of law and civil liberties – that underpins the territory’s unique status.
James To, veteran democratic legislator, said if “some cases” will be handled outside the local system, “it would be a complete sabotage of the one country-two systems and there will be no more freedoms” in Hong Kong.
He said the fundamental principle of the Joint Declaration signed between Britain and China in 1984 to safeguard Hong Kong’s way of life after the 1997 handover was for acts that take place in the city to be under the jurisdiction of local laws and local courts, which run on the common law system.
Human rights and civil liberties in Hong Kong are guaranteed under its post-handover mini constitution, the Basic Law, and the International Covenant on Civil and Political Rights. But legal experts now fear that the “unchallenged status and authority” of the national security law raised by Deng could mean it will override the Basic Law and its safeguards of rights and freedoms.
“If the Basic Law is no longer applicable, then you can pretty much write anything into the content [of the national security law], because however much it restricts human rights, you cannot use the Basic Law to challenge it,” Johannes Chan, Chair of Public Law at the University of Hong Kong, told public broadcaster RTHK.
Chan also questioned officials’ assurance that the law would only apply to “just a handful” of people.
“The concept of law is that it is applicable to all. There is no question of laws applying to only ‘a few’. If so, that would be the rule of man, not the rule of law,” he said.
Professor Michael Davis, a Global Fellow at the Woodrow Wilson International Centre and former law professor at the University of Hong Kong, said the officials’ remarks “signal grave cause for concern”.
“Putting Hong Kong cases involving alleged national security violations in mainland courts would be a disaster,” he said. “You would presumably not know if your advocacy was such a ‘rare case’ until you were hauled across the border to stand trial. This sort of idea undermines the rule of law.”
He pointed out that while Hong Kong courts can contest laws that are unconstitutional, Chinese courts do not. China’s legal system also allows lengthy pre-trial detentions, with defendants in cases involving national security often subject to incommunicado detention of up to six months with no access to lawyers or families. (Source: The Guardian)