Po Jen Yap on Judging Hong Kong’s Nationwide Safety Regulation (new guide chapter)

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“Judging Hong Kong’s Nationwide Safety Regulation”
Po Jen Yap
in The Nationwide Safety Regulation of Hong Kong: Restoration and Transformation,

Edited by Hualing Fu Michael Hor (Hong Kong College Press, July 2022),
Chapter 7, pp. 149-166
Introduction: An hour earlier than the twenty-third anniversary of the Hong Kong Particular Administrative Area’s (HKSAR) institution, the Standing Committee of the Nationwide Individuals’s Congress (NPCSC) bequeathed a brand new Nationwide Safety Regulation (NSL) to Hong Kong.  Introduced as a “birthday present”, this providing was ready behind closed doorways – the main points weren’t topic to any public session and the regulation as solely unveiled earlier than the awaiting inhabitants after it took impact.  Shock!

     Secession, which incorporates independence advocacy, subversion of state energy, which incorporates using illegal means to significantly undermine the operations of “the physique of central energy of the Individuals’s Republic of China or the physique of energy of [the HKSAR]”, and collusion with overseas governments, which incorporates the receipt of any funding or help from a overseas nation to impress by illegal means hatred amongst Hong Kong residents in direction of the Central or Hong Kong Authorities are all nationwide safety penal offences now.  Terrorism has additionally been outlined to incorporate the sabotage of vehicular transport and visitors amenities for political ends.  For all 4 crimes, offenders face sentences of as much as life imprisonment for grave violations.  Even non-Hong Kong residents based mostly exterior the jurisdiction are chargeable for prosecution in the event that they commit any of those penal offences in opposition to Hong Kong.  A nationwide safety company established by Beijing to collect intelligence can now function legally in Hong Kong however should abide by native legal guidelines, although these mainland officers usually are not topic to native jurisdiction for acts carried out in the middle of obligation.  The enforcement and prosecution choices made beneath this NSL are entrusted to native officers and Hong Kong courts are additionally empowered to adjudicate the overwhelming majority of instances introduced beneath this regulation.  Most native felony regulation procedures and human rights safeguards proceed to use.  However jury trial in particular person instances may be changed with a panel of three judges, and the place state secrets and techniques are concerned, all or a part of the trial may be closed to the general public, although the decision should nonetheless be introduced in open court docket.  In these uncommon severe instances the place overseas governments are concerned or the Hong Kong authorities is unable to implement the regulation successfully, the Chinese language procuratorate and courts are legally empowered to take over from native counterparts.  The regulation opens up the chilling chance that for these distinctive instances, the offenders, if in Hong Kong, may be extradited to the Mainland to face trial.  Lastly, the facility of decoding this nationwide safety regulation lies with the NPCSC, which expressly permits mainland officers to overrule the Hong Kong judiciary’s interpretation of this NSL.

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     As to be anticipated, responses to this NSL have been sharply divided.  Western media has largely portrayed the NSL because the “closing nail in Hong Kong’s coffin” and mourned town’s demise.  Then again, Beijing loyalists fete the regulation as a “new social contract” that restores stability and recovers Hong Kong’s “authentic aspiration of ‘One Nation, Two Methods.”‘
     On this chapter, I don’t intend to interact with the histrionics or propaganda.  Neither do I search to navel-gaze and portend the long-term impression – salubrious or deleterious – that the NSL would have on Hong Kong’s financial and civic life.  My intention is extra modest: I shall look at whether or not the NSL is constitutional and discover the choices Hong Kong judges have in assessing its legality and decoding its operative scope.

     In essence, my arguments are as follows.  First, it’s defensible – as Albert Chen has argued – that the HKSAR’s constitutional obligation to enact nationwide safety legal guidelines “by itself” is topic to an implied requirement that this obligation be fulfilled inside an inexpensive time, or the Central Authorities could intervene and legislate on the HKSAR’s behalf.  However to be constant, Beijing must also act unilaterally on one other mothballed provision – Article 68 of the Primary Regulation (BL) – which ensures the election of all members of the Legislative Council by common suffrage.  Second, the insertion of the NSL into Annex III BL is problematic because the BL solely authorises the inclusion of 全國性法律   – Individuals’s Republic of China (PRC) legal guidelines which have nation broad purposes or results.  Notably, the NSL solely applies to Hong Kong and to not the Mainland.  Nonetheless, it is going to be a idiot’s errand for the Hong Kong courts to reject the NSL wholesale, or invalidate it partly, as Beijing can legally overrule the courts and oust these judges from future nationwide safety disputes.  As an alternative, Hong Kong judges ought to interact in a remedial interpretation of the NSL, such that the regulation’s operative scope is learn down and extra safeguards are judicially inserted into the laws.  

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