CHINA HK national security law in line with Constitution and Basic Law, says expert


HK national security law in line with Constitution and Basic Law, says expert

China Daily

16:47, June 22, 2020

The Chinese national flags and flags of the Hong Kong SAR flutter in Hong Kong. (Photo: Xinhua)

The draft national security law for Hong Kong is strictly in line with China's Constitution and Hong Kong's Basic Law, an expert said.

Han Dayuan, a law professor at Renmin University of China, said the draft law, which passed through its first deliberation by the Standing Committee of the 13th National People's Congress from Thursday to Saturday, materializes the decision made by China's top legislature last month to establish and improve the legal system and enforcement mechanism for safeguarding national security in Hong Kong.

He said the draft adheres to and perfects the "one country, two systems" principle, safeguards national sovereignty and security, and emphasizes that the ultimate purpose of the law is to maintain constitutional order of Hong Kong, protect Hong Kong people's rights and freedoms and restore Hong Kong's rule of law as soon as possible.

Although the legislation is an urgent task, China's top lawmakers have strictly followed legal procedures. They solicited opinions from the Hong Kong special administrative region government, legal professionals and representatives from all walks of life before formulating the exact wording, proving that the legislative process is democratic and scientific, he said.

Han said that after the first deliberation, the draft will face a second review, the date of which remains unclear. According to the Legislation Law of China, if consensus can be reached during the second deliberation, the law could be submitted for a vote.

"It is not in compliance with the legal process to enact a law after only one review," he said. "It also shows that the lawmakers are strictly following legal procedure."

Han said one of the key principles applied in the drafting process was to fully consider the differences between the legal systems of Hong Kong and the Chinese mainland. The drafting work handled the connections and compatibility between local Hong Kong laws and national laws well to make sure they were cohesive and complemented one another.

For example, the draft clarifies responsibilities, stipulating that the central government shoulders the fundamental responsibility for national security affairs while the HKSAR government bears the major responsibility for daily national security duties.

The draft also stipulates that it is Hong Kong that exercises jurisdiction — including investigation, monitoring and trial — over criminal cases. Considering the central government's overall governance over Hong Kong, the draft also says that "under specific circumstances", central authorities may exercise jurisdiction over a tiny number of criminal cases that jeopardize national security.

"It shows that the draft has considered the implementation of national laws in Hong Kong and tried to bridge national laws and local laws as much as possible," he said.

The draft also maintains the service of foreign judges in Hong Kong's judiciary as stipulated in the Basic Law. However, considering some national security cases may be special, the draft requires, within the existing legal framework, that the chief executive of the Hong Kong Special Administrative Region shall appoint judges to hear national security trials, he said, adding that this demonstrates respect toward the provisions of the Basic Law and the basic system of Hong Kong's rule of law.

Han said the draft also places great emphasis on respecting human rights. It makes clear stipulations on protecting the rights and freedoms that Hong Kong people are entitled to under the Basic Law, answering concerns that the new national security law might excessively restrict their basic rights.

"Emphasizing national security and strictly enacting a national security law are ultimately to better protect human rights," he said. "Since the unrest caused by the extradition bill last year, it has been impossible for Hong Kong residents to effectively exercise their rights and freedoms guaranteed by the Basic Law. Their freedom, even their lives, were threatened, so this draft emphasizing this aspect has significant meaning."

Han said another point of the draft that would reassure Hong Kong people is that the staff of the central national security agency stationed in Hong Kong will have to abide by local laws in addition to national laws.

He said the draft law serves as a "new exploration, new practice and new innovation" in China's legislative system as it incorporates the content of different systems of law into one law.

"This is a new exploration and innovation in national security legislation," Han said. "It will continue to improve in practice."

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