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Hong Kong courts
OpinionComment
Andrew Li
Andrew Li

Opinion | China-enacted national security law must be consistent with Hong Kong legal principles

  • Local government must make every effort to fulfil responsibility to ensure proposed legislation is in keeping with legal system
  • Barring judges who hold foreign passports from hearing national security cases is not justified and would be detrimental to judicial independence

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Illustration: Craig Stephens
Andrew Li

Under Article 23 of the Basic Law, the Hong Kong special administrative region has a constitutional duty to enact national security legislation covering seven areas. In the last 23 years, we have failed to do so. Only one attempt has been made. Further, there is no prospect of Hong Kong doing so for many years to come. It cannot be said with any confidence that we will be able to do so before 2047.

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In these circumstances and with regard to events in Hong Kong in the last few years, the decision of the National People’s Congress to authorise its Standing Committee to enact national security legislation for Hong Kong is understandable and justifiable. It will deal with some areas covered by Article 23, but the crux of the matter is in the actual content of the proposed law.

The details of the draft legislation have not been revealed. As I understand it, the intent is that the legislation will be designed to fit Hong Kong’s legal system. To do so, it should be consistent with the principles of our legal system based on common law. This intent must be fully reflected in the proposed law.

The law must not be retrospective. Offences must be defined with reasonable certainty. Their scope must be restricted to what is necessary to achieve the legislative purpose. Investigatory powers must be governed by Hong Kong law. In particular, premises cannot be searched and phones cannot be tapped unless judicial authorisation has been obtained.

Prosecution decisions should be made in accordance with our Prosecution Code. Trials should be conducted in Hong Kong openly and fairly. The accused would be presumed innocent and guilt must be established beyond reasonable doubt.
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The legal profession and the community will no doubt be scrutinising the draft law. When consulted as required by the Basic Law, the Hong Kong government must make every effort to ensure the proposed law conforms to the principles of our legal system. Citizens have every right to expect that the government will fulfil its responsibility in this regard.
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