By Jerome A. Cohen
Here, in an amazingly short time, is a useful, quick analysis by the astute NPC Observer of the summary of the draft National Security Law distributed following the end of the NPCSC’s June 18-20 session. It notes the failure of the summary to enlighten us about the definitions of the four major offenses, and the vagueness surrounding the circumstances in which and methods by which the Central Government will exercise jurisdiction over the “very few” cases that cannot be left to Hong Kong. There is not a word about extradition, there is no clear light about jury trials and care NOT to use the anticipated term “special court” to describe arrangements for what is in effect a special court, no mention of the privilege against self-incrimination, no details about whether the Chief Executive will pick judges for each case or only for the special panel from which they will be selected, no mention of whether foreign judges will be excluded from the security trials, and so many other judicial issues skirted, including how courts are to receive interpretations of the NPCSC in cases that raise issues of statutory interpretation or constitutional questions. Also still a mystery is whether the public will be given a formal chance to submit written comments on this fragmentary material or if it will be left to the restricted channels currently existing for registering popular reactions. No referendum, school protests, boycotts, strikes, or public demonstrations; only limited access to government circles and resort to the media, civic and academic meetings, etc. Will opposition to the draft NSL today lead to trouble with the new system tomorrow? We are told that no punishments will be imposed for conduct committed before it was proscribed by law. That major judicial principle may still be observed when a security court makes its decision but surely it will not prevent the new security police from initiating the investigations that will lead to prosecutions ostensibly limited to NSL-proscribed conduct. And, in sentencing, judges often look to the convicted person’s past behavior, not merely to previous criminal convictions.