Political situation
Written by: Zhou Lixi
2020-07-05 19:03
Last update date: 2020-07-05 19:04The National Security Law of the Minato District came into effect earlier. Tan Huizhu, deputy director of the Basic Law Committee, said today (5th) that when she participated in the drafting of the Basic Law, Hong Kong was able to legislate on Article 23 on its own, because the criminal law in the Mainland had counter-revolutionary crimes. The national security is left to Hong Kong people to handle by themselves, emphasizing that the Central Government has never delegated the relevant power.
She emphasized that it is not inevitable for cases involving national security to be handed over to Hong Kong for trial. The Central People's Government handed over most cases to Hong Kong in respect of the two systems.
At the meeting, Chen Hongyi, a member of the Basic Law Committee, anonymously responded to the deputy director of the Hong Kong and Macao Office, Zhang Xiaoming, who earlier said that the announcement that the "Prince Station was killed on 8.31" was hateful to the police and had the opportunity to violate the National Security Law. He believed that this behavior was not likely to be illegal in Hong Kong itself, and asked the senior general Qing Qing who was sitting beside him specializing in criminal law, whether false information was released in Hong Kong was "not an illegal act", and Qing Hong nodded slightly after hearing it.
Tan Huizhu pointed out that the Police Department’s responsibility for maintaining the national security department is similar to that of the Hong Kong British Ministry of Political Affairs. However, since there was no work in the police force to collect intelligence, the National Security Office in Hong Kong will work closely with the police department. (Photo by Zhang Haowei)
Tan Huizhu, who had served as the draft committee for the Basic Law, pointed out that Article 23 legislation is not a matter of Hong Kong autonomy. The legislative power always rests with the central government. It is the central authority, not the local authority. She described that 23 articles have not been enacted, leaving Hong Kong with a lot of holes, and national security is only responsible for "one country", there is no difference between "two systems", reaffirming the authorization of the National People's Congress "Decision" is not a one-time decision In the future, the central government can continue to legislate.
When Tan Huizhu introduced the National Security Law, he mentioned that there are provisions in the National Security Law stating that the decision of the National Security Council cannot be judicially reviewed. She explained that according to the common law, if there is something that should not be reviewed by the judiciary, it needs to be written in the provisions. This does not mean that the review cannot be tried, but the victory of the Security Committee will be much higher.
Tan Huizhu pointed out that the Police Department’s responsibility for maintaining the national security department is similar to that of the Hong Kong British Ministry of Political Affairs. However, since there was no work in the police force to collect intelligence, the National Security Office in Hong Kong will work closely with the police department.
Senior Counsel Qing Hong. (Photo by Zhang Haowei)
Qinghong: I don’t think it is a criminal responsibility to simply say "Hong Kong independence"
Senior Hong Kong lawyer Qing Hong said that at the legal level, the new National Security Law is "the same as the Basic Law." He pointed out that 23 articles have been unable to pass because of the Legislative Council, plus social reactions. For example, the "July 1st" parade in 2003 made 23 articles impossible. He also pointed out that the extreme demands of demonstrators last year caused bloody conflict. He pointed out that the central government has been quite patient until demonstrators used violence, occupation of the Legislative Council, and destruction to make the central government impatient. Afterwards, the National People's Congress used Article 18 of the Basic Law to bring national laws into the vicinity of the Basic Law.
Attorney for the Democratic Alliance for the Betterment of Hong Kong asked at the meeting that "behaviour" in the law itself does not include speech. If the Hong Kong independence slogan is shouted on the street, it will not be affected by Article 20. Qinghong responded that he personally did not think it was criminal responsibility to just call out the relevant remarks. He said that the intention and environment of the remarks will have a great impact. Chen Hongyi added that this act should ask about the crime of incitement in Article 21.
Senior Barrister Feng Huajian pointed out that all judges in Hong Kong are appointed by the Chief Executive as recommended by the Judicial Officers Recommendation Committee. He believes that the arrangements for the trial of Guoan cases by the Chief Executive will also have the same proposal, proposed by the Chief Judge of the Court of Final Appeal. Whether there is a special selection of national security issues, he thinks it is necessary, because national security goes beyond the scope of the Hong Kong SAR's governance and requires special arrangements. As Hong Kong people, we also have an important responsibility to implement national security, which is a task within the Constitution.
Senior Barrister Feng Huajian. (Photo by Zhang Haowei)
Hongyi Chen: The definition of the crime of collusion with foreign forces is complex
Chen Hongyi pointed out that the Code of Conduct established by the National Security Law can not be done, referring to the legal principles of Hong Kong, people are free to do anything that the law does not prohibit, so he believes that the most important understanding of the National Security Law is what criminal law is established behavior.
He pointed out that Articles 20 and 21 of the National Security Law mentioned the act of splitting the country. For example, Spain’s Catalan referendum violated this crime. Article 21 incitement includes incitement to violations of Article 20. The crime of secession in the Mainland is similar to Hong Kong’s National Security Law and can be used as a reference. As for the crime of subversion of state power in Articles 22 and 23, the Hong Kong version of the National Security Law is different from the Mainland. Hong Kong has a relatively narrow scope. In addition to various requirements, it also includes the use of force or threat of use of force, or other illegal means. It is believed that the fourth paragraph of Article 22 is clearly aimed at the incident of the destruction of the Legislative Council building last year.
Chen Hongyi said that the crime of terrorist activity is not a new concept in Hong Kong law. Chapter 575 of the Hong Kong Law has defined a terrorist act. In addition to the destruction of people and property, it also includes different elements such as public health. He refers to the definition of Article 24 Close to the international definition class.
As for the crime of "collusion of foreign forces", Chen Hongyi pointed out that it is more complicated, because Article 29 can be divided into two kinds of crimes, A and B: the former is simpler, and illegally provides state secrets and intelligence to foreigners or foreign forces. Articles 9 and 10 of the definition of the Law on the Protection of State Secrets know whether the relevant information is state secrets.
B crime includes 3 kinds of behaviors, plus 5 kinds of situations, each of which constitutes a crime. The behavior includes asking foreign countries, conspiracy to do something with foreign countries, and C is accepting foreign instructions or funding to deal with some behaviors. The five situations include waging war and severely obstructing the actions of the central government or the SAR government. For example, he pointed out that encircling the Legislative Council and delaying legislation, "Will it belong to this?"
Chen Hongyi pointed out that the Code of Conduct established by the National Security Law cannot be done. Under Hong Kong’s legal principles, people are free to do anything that is not prohibited by law. (Photo by Zhang Haowei)
Qinghong appeals to Hong Kong people to remember the Chinese Red Line
At the meeting, someone asked about the trust between Hong Kong and the central government, the difference between the National Security Law and Article 23, and how to rebuild trust in the National Security Law. Qinghong responded that he must remember that Hong Kong is only a small point in China. "As long as China sneezes, Hong Kong can already get pneumonia." It emphasizes that Hong Kong people must remember the red line that China cannot accept, such as Chinese sovereignty and collusion with foreign countries. He I believe that as long as the relevant behavior is avoided, the central government can be trusted more in Hong Kong.
Mang Eng asked Feng Huajian if the "propotionality test" would make the proportion of the National Security Law questionable. Feng responded that under the common law principles of Hong Kong, the court will not judge whether there is a crime with one-sided content, and social stability and interests are matters that all courts will pay attention to, so he will not be too worried about the concerns of the Isle of Man.
Liang Meifen, a member of the Basic Law Committee, added that they discussed the possibility in class and had a very different background from what happened at the demonstration and called slogans.
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Hong Kong version of National Security Act Tan Huizhu Chen Hongyi (Legal Circle)