We'll soon be able to judge new law

Editorial | Mary Ma 22 Jun 2020

It's almost a certainty that the National People's Congress standing committee will finalize and announce the national security law for Hong Kong at its next meeting from June 28-30 in view of Beijing's apparent determination to fast-track the legislation.

If announced in Beijing as predicted, the law will have to be promulgated here. Will it be promulgated immediately before July 1 to preempt the annual march?

According to the blueprint provided by Xinhua News Agency, the legislation is harsh and imposing - but not as much as feared before.

Some patriotic hardliners had called for retrospective powers and for Hong Kong judges of foreign nationality to be barred from security cases. To the relief of many, these were not in the blueprint.

Instead, the Xinhua outline was largely consistent with the moderates' suggestions, with enforcement and trial to be conducted mostly by local authorities.

Police would set up a special branch to be staffed by specially recruited officers. The justice department would also form a new unit dedicated to charging people involved in security cases.

At the SAR government level, a central committee would be created. This would be led by the chief executive and involve senior ministers, with the participation of a special consultant to be appointed by Beijing. But still, so-called extremely serious cases would be handled directly by Beijing.

The most controversial provision in the outline was a departure from Hong Kong's long-standing judicial practice.

Instead of allowing the city's chief justice to assign judges to hear security cases, part of this important judicial authority would be given to the chief executive who, though being head of the administrative arm, would be empowered to name a judge or judges for those trials.

What is the reason for this departure? Does it mean Beijing does not believe in some judges? The writing is on the wall.

Nonetheless, it is probable that Beijing has gone to some extent to maintain a balance by adopting some inputs made by the SAR.

While it would be devastating to exclude judges who are foreign nationals from all the trials related to security interests, it is like half-lowering the shutter by empowering the chief executive to select the judges sitting on those trials.

It is uncertain whether the chief executive will appoint a judge or a panel of judges after a case is brought up for trial, or name a pool of judges before there is any case.

My feeling is that the former is probable.

No matter what, it is extremely important for the judiciary to be seen as being able to act independently to provide effective checks and balances against probable abuse of the new draconian power.

Will the judiciary be able to perform its role independently? That's the litmus test.

The People's Daily ran a commentary saying the central government would exercise a maximum degree of self-restraint - except for cases the SAR could not possibly handle. What does that exactly mean?

In a week, the law will most likely be announced. Before the SAR is a river new on the map and everyone will have to cross it by feeling the stones.

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