By Jerome A. Cohen
This article offers the most detailed forecast I have seen of the legislative process for the Hong Kong National Security Law that is currently underway in the Standing Committee of the National People’s Congress. The anticipated procedure is not the customary one since an emergency-type schedule is apparently to be pursued. If a public consultation is nevertheless to be conducted on the proposed draft or drafts, it apparently will occur on a foreshortened basis, with less time than usual for popular responses to be submitted and considered by the legislative drafters. This might, of course, diminish the desired propaganda impact of the public consultation.
In the meantime, the PRC and the Hong Kong government are doing all they can to repress local democratic opposition to the legislation and mobilize and coerce support from officials and elites in business, education, media, legal and other sectors, despite the public’s lack of knowledge about the content of the legislation. The PRC is trying to propagate the belief that, since all countries need national security laws, those laws are all necessarily alike, so there is nothing to be worried about.
Furthermore, it is not unduly cynical to believe that this rushed timeline is an effort to ensure that candidates for Hong Kong’s Legislative Council have declared their support of the law before the September election. In light of experience, it seems logical that this is the case. However, democratic candidates should be better prepared than they were in the past to protect against the possibility of moves to disqualify them. Certainly, they should not fall into the trap of grandstanding in ways that will lead to their elimination. How to do that while still making their true views clear may not be easy, but there is time to develop ingenious and effective responses in advance.
Of course, the threat of criminalizing previously tolerated speech will confront and affect all people in HK, presumably including foreigners. Will criminal prosecutions be brought against alleged offenders from the time the NPC Decision was adopted on May 28 or only from the date of the forthcoming legislation’s promulgation? Will it encompass pre-May 28 conduct? It remains to be seen whether the text of the legislation will mention ex post facto justice and any exceptions to be allowed to the universally admired principle against retroactive application of criminal laws.
The new legislation will undoubtedly raise a host of other thorny legal issues, including whether a special court will be established for relevant trials and whether its procedures will respect Hong Kong’s common law practices and laws and the provisions of the International Covenant on Civil and Political Rights that protect Hong Kong in accordance with the Sino-British Joint Declaration on Hong Kong. These issues will be discussed in subsequent blogs.