SCMP Article: Will Hong Kong’s rule of law survive the challenge of Beijing’s national security legislation?

Michael C Davis writes…

With the expected passage of the  National People’s Congress resolution on national security this week, mainland and Hong Kong officials assure us that the proposed law will be  narrowly drafted  and  pose no threat to basic freedoms and the rule of law in Hong Kong. This assurance should be doubted.

The claim that public officials are reliable people who will only go after the bad guys underlies the People’s Republic of China’s tradition of rule by law. It presumes that a society of laws is one where officials issue the right directives and everyone else is bound to follow them. Such use of law as only an instrument of control is not the rule of law as known in Hong Kong.

Rather, the rule of law primarily aims to maintain public order by ensuring that officials comply with properly enacted laws in carrying out their duties. For common law Hong Kong, under the Basic Law, such laws should be the product of a proper legislative process with enforcement and oversight in the ordinary courts.

This is not what is envisioned with regard to the proposed national security law. The NPC resolution runs afoul of a number of Basic Law requirements. First, the process of enactment raises grave concern. The NPC has directed this mainland-drafted national security law be added to Annex III of the Basic Law and then directly promulgated for application in Hong Kong.