We all know how bad it is for Hong Kong here’s some thoughts from Carole J. Petersen
Professor of Law, William S. Richardson School of Law in Hawaii posted to the China Law Discussion List
From: Chinese Law Discussion List <[email protected]> On Behalf Of Carole Petersen
Sent: Tuesday, June 30, 2020 7:26 PM
To: [email protected]
Subject: Re: HK National Security Law Summary
Dear all,
I have drafted a list of my initial questions regarding the new national security law that is now in force in Hong Kong. I would really appreciate any thoughts, even if we are just brainstorming at this stage. Feel free to reply directly to me at [email protected] if you would rather not send your responses to the entire list. I am basing my questions on the version published by Xinhua at: http://www.xinhuanet.com/english/2020-07/01/c_139178753.htm.
Q1: Will HK courts be able to interpret ambiguous language in the law? Article 65 states that the power of interpretation shall be vested in the NPC Standing Committee. But I don’t see any language expressly prohibiting HK courts from also exercising their normal powers of statutory interpretation in the course of trying cases or requiring local courts to send questions regarding interpretation to the NPCSC. Am I missing something?
Q2: Article 62 states that this national security law shall prevail “where provisions of the local laws” of Hong Kong are inconsistent with the national security law. But Article 4 states that the rights Hong Kong residents enjoy under the Basic Law and the ICCPR shall continue to be respected and protected. So, if there are two possible interpretations of language in the national security law (e.g. in the definitions of the new crimes), then it would seem that the interpretation that complies with the ICCPR and the BL should prevail. Thoughts?
Q3: As I read Articles 20 and 22 (and if I interpret any vague language so as to comply with the ICCPR), an academic article that simply analyzes certain controversial issues (e.g. criticizing China’s territorial claims in the South China Sea; or criticizing the state of human rights in Tibet; or criticizing the new national security law being applied to HK) would not fall within the definitions of secession or subversion. Any thoughts on that issue?
Q4: Article 29: the language “an institution, organization, or individual” outside HK, Macau and the Mainland seems to include the UN, UN human rights treaty bodies, and independent experts appointed by the Human Rights Council. But it only becomes unlawful to request action from one of them if the requested action falls within one of the numbered acts and the broadest would be (2): seriously disrupting the formulation and implementation of laws and policies by the local or central government. But given that the UN treaty-monitoring bodies cannot really do anything other than criticize and make recommendations, I cannot see how it would be a crime to submit a critical shadow report or to appeal to the UN for a statement criticizing the local or central governments. Thoughts?
Q5: Article 7 states that HK should enact its own national security legislation and that it shall refine relevant laws. Is this is a direction to Legco to amend the existing local ordinances so as to redefine some offenses that are already covered in local law (e.g. treason, sedition, the anti-terrorism ordinance)? Alternatively, could Article 7 provide a vehicle for enacting a local ordinance that provides more clear definitions of some of the crimes that are created in the national security law (but defined rather vaguely)?
Q6: Similarly, could Article 7 allow Legco to enact an ordinance defining more precisely when a case should be viewed as falling within Article 55? Or will that be left as vague as it is in Article 55?
Q7: When I read Articles 55-61, I could find any explicit language providing for extradition of a person to the Mainland for trial. Is that just implicit or will Legco be asked to enact a local Ordinance along the lines of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill, which was withdrawn in 2019? Alternatively, is it possible that the Central authorities plan to bring prosecutors and Mainland judges to HK for cases in which jurisdiction is assumed under Article 55?
Q8: Article 59 states that any person who has information pertaining to a case that falls within Article 55 is obligated to testify truthfully. Does this imply that a Hong Kong resident who is not charged with any offence could, nonetheless, be compelled to go to the Mainland to testify? (Alternatively, could a HK resident be compelled to testify in some national security court that the Central government brings to HK?.
Many thanks for any and all comments.
Carole
Carole J. Petersen
Professor of Law, William S. Richardson School of Law
Graduate Chair, Matsunaga Institute for Peace
University of Hawaii at Manoa
2515 Dole Street
Honolulu, HI 96822
Email: [email protected]
