Bar Association raises concerns over new national security law

Local | 25 May 2020 5:10 pm

The Hong Kong Bar Association has raised "fundamental constitutional and legal concerns" regarding the proposed national security law and urged the SAR government to address them.

In a statement, the association said although the contents of the proposed law are yet to be publicized, it observes that the draft decision discloses a number of worrying and problematic features.

It said under the Article 18 of the Basic Law, the laws added to Annex III by the National People's Congress Standing Committee shall be confined to those relating to defense and foreign affairs as well as other matters outside the limits of the autonomy of Hong Kong.

But the proposed law would appear to contain matters covered by Article 23 of the Basic Law and it is within the autonomy of the SAR to enact the relevant laws.

The association also said under Article 66 and 73 of the Basic Law, the Legislative Council, being the legislature of the SAR, shall enact, amend or repeal laws in accordance with the provisions of this law and legal procedures.

"It would therefore appear that the NPCSC has no power to add the HK National Security Law under Annex III of the Basic Law via the mechanism provided under Article 18 of the Basic Law," the HKBA said.

It said there is no assurance that the proposed law will comply or be required to comply with provisions of the International Covenant on Civil and Political Rights, which is entrenched in the Basic Law.

And it is unprecedented that the proposed law is intended to be enacted by promulgation by the SAR government rather than legislation by the Legco, while there is no assurance that public consultation will take place at all on this vastly important legislation.

"The public must be allowed the opportunity to properly consider and debate about proposed laws which affect their personal rights and obligations,"  the association said.

The Article 4 of the draft decision stipulates that when needed, relevant national security organs of the central government will set up agencies in Hong Kong to fulfill relevant duties to safeguard national security.

"It is entirely unclear how the proposed agencies set up in the HKSAR will operate under the laws of the HKSAR, whether they will be bound by the laws of the HKSAR, whether they have power of enforcement, and whether such powers as exercised will be limited by the laws currently in force in the HKSAR," the HKBA said, adding that it is also entirely unclear how the arrangement would comply with Article 22 of the Basic Law.

As for Article 3 of the draft decision, which says the SAR's administrative, legislative and judicial organs must, in accordance with relevant laws and regulations, effectively prevent, stop and punish acts endangering national security, the association said reference to "judicial organs" gives rise to perceptions that the Judiciary is being or will be instructed to act in a particular way.

"Independence of the Judiciary is the cornerstone of the success of the HKSAR and should not be undermined in any way."

The HKBA also noted that news of the imminent enactment of proposed law has caused deep unease in the local and international community.

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