Central govt has full legal rights to set up national security law for HK: Ex-Secretary of Justice

By Bai Yunyi Source:Global Times Published: 2020/5/26 22:02:26

Hong Kong residents sign their names on Friday in support of the Hong Kong national security law. A draft decision of the law was submitted to China's top legislature on Friday. Photo: cnsphoto

The central government has the legal power and responsibility to establish a national security law anytime, and even if Hong Kong establishes Article 23, the central government could enact a new national security law, Elsie Leung Oi-sie, deputy director of Hong Kong Basic Law Committee of the Standing Committee of the National People's Congress and former Secretary of Justice told the Global Times on Tuesday in rebuking questions raised by the Hong Kong Bar Association on whether China's top legislator has the legal power to draft the law. 

The comments were made after the Hong Kong Bar Association issued a statement on the proposed legislation by the National People's Congress (NPC) on Thursday, claiming that matters included in the new national security law appear to be covered by Article 23. As a result, the NPC Standing Committee has no power to add the national security law under Annex III of the Basic Law in Article 66 of the Basic Law, under which the Legislative Council shall be the legislature of the Hong Kong Special Administrative Region (SAR). 

The association has the wrong points of view on Article 23 and the central government's formulation of the legislature, Leung said, noting that the central government has the legal power and responsibility to establish a national security law anytime. Even if Hong Kong establishes Article 23, the central government could enact a new national security law.

Also, as Article 23 was set 30 years ago, the major considerations concerning national security are based on some traditional behaviors endangering security, Leung said, noting that after 30 years, there have been new situations in and out Hong Kong, which require relevant laws, she said. 

"Even if Article 23 is completed, it doesn't mean that Hong Kong has fulfilled its responsibility to the country on national security," she added.

While some media reported that a major concern of Hong Kong's opposition focuses on whether the central government takes away the power of the legislature of the city, Leung noted that national security is the matter of the central government, which can't be handled independently by local authorities. "Hong Kong is one of the central government's SARs, and some powers that have not been authorized to the SAR are still in the hands of the central government," she said. 

The association also mentioned that there is no assurance that the new national security law for Hong Kong complies or is required to comply with provisions of the International Covenant on Civil and Political Rights, which is entrenched in the Basic Law. "The association may not fully understand the situation in the mainland, nor have any idea about what the law would look like after it is enacted," she said. 

"Respect for human rights was explicitly included in the amendment of the Chinese Constitution in 2004 and the National Security Law also clearly states that law enforcement agencies shall not infringe upon the rights of the population in the enforcement of the law, and that when there is a restriction on the rights of the population, there must be lawful reasons and reasonable means," she said, noting that this is in line with the Hong Kong conventional human rights law and ordinance. 

Since the NPC announced the new national security legislation for Hong Kong, the Hong Kong SAR government and a number of civil society groups expressed support for the law. However, some different opinions emerged, particularly the debate and controversial opinions in the legal sphere. It may take some time to formulate the law and push it forward in the legislature, some analysts said.

To bring up judicial review is the legitimate right of Hong Kong citizens, which both legal system representatives and the Hong Kong public should understand, Leung noted. "However, some people hyped the claim that the new law is not in line with the existing legal system of Hong Kong, or that the central government would copy the mainland system to Hong Kong. Neither of them would happen," she said. 

For example, the Garrison Law was introduced to the Basic Law through the Annex III, which has posed no controversy over the past 23 years and changed nothing in Hong Kong's legal environment and level of freedom, Leung said, noting that there is a clear definition on what situation goes to a local court or military court in accordance with the Garrison Law. "The new national security law will be the same, which will have reasonable arrangements," she added. 

All departments in Hong Kong are designed to tackle social security rather than national security, which the UK was responsible for until 1997. As a result, what Hong Kong needs to improve now is not only the relevant legal system, but also the establishment of law enforcement departments and institutions, the former Secretary of Justice said. 


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