Update on Last Week's NPCSC Meeting

By Jerome A. Cohen

Here is the latest report from Changhao Wei’s “NPC Observer.” It, like Susan Finder’s “Supreme Court Monitor,” is an invaluable asset in helping us keep track of the work of Chinese legal and governmental institutions. This report discusses the past week’s output of the Standing Committee of the National People’s Congress. Its most recent meeting was noteworthy in several respects.

First of all, there was apparently no discussion of the possibility that the NPCSC might issue a clarification of the scope of Article 38 of the new National Security Law for Hong Kong. Article 38 has been widely criticized in Hong Kong and abroad because, on its face, it purports to condemn as criminal actions that are perfectly legal in the jurisdictions where non-permanent residents of Hong Kong have committed them. This goes beyond the reach of China’s code of Criminal Law and standard international practice. It remains to be seen to what extent the PRC will seek to implement Article 38. Beijing may be content for now with the in terrorem effect of the language, which has been considerable.

Additionally, the amendments to the PRC’s National Flag Law and National Emblem Law, undoubtedly inspired by events in Hong Kong and applicable to Hong Kong, should be studied for their impact on the Special Administrative Region’s socio-political-legal environment as well as the rest of the nation.

The substantial revision of the Minors Protection Law should interest human rights advocates.

Perhaps of great importance to many observers in the scientific, legal, economic, social and political fields, is a new Biosecurity Law that must have been stimulated at least in part by the Covid-19 crisis and the antecedent controversy and criminal case relating to CRISPR and gene-editing.

Thanks again to the NPC Observer, a periodical worthy of our support.

The NPCSC's Telling Silence

By Jerome A. Cohen

This Xinhua release in today’s China Daily is, of course, of great interest, if only because of its silence about the NPCSC’s failure to mention whether the four democratic Legislative Council (LegCo) members who have been banned from re-election will be allowed to serve for the remaining one-year minimum of the existing LegCo term. The NPCSC’s silence on this issue means that the four will be permitted to continue for the extended year. This is the bone that Carrie Lam has thrown in an attempt to pacify the masses for the postponement of September’s election and the disqualification of the four from future service. Politically this may seem a shrewd move since the four cannot do much damage in the current LegCo, which remains under government control. As members of a popular majority in the next LegCo, they might have been a strong voice for democracy. Legally and logically, however, the decision seems inconsistent and a travesty exposing the real reasons for the disqualification.

Worthy of notice is the penultimate paragraph of the Xinhua story, which reports the full support given to the NPCSC’s newest decision by the “founding president of the  Small and Medium Law Firms Association of Hong Kong”. This is an organization I have never heard of and may have been recently created. Perhaps its support is designed to counter the embarrassment caused by the failures of both the HK Bar Association and the HK Law Society to voice similar support.

In this connection it is useful to note another action of the NPCSC reported in today’s China Daily – the decision to allow HK and Macao lawyers to practice law in the nine major cities of Guangdong Province once they qualify like Mainland lawyers. This won’t make the local competition happy but gives an incentive to HK lawyers to support “the second Handover”.

My take on China’s reaction to Hong Kong High Court’s ruling declaring the mask ban unconstitutional under the PRC’s Basic Law

By Jerome A. Cohen

Yesterday, the spokesperson of the National People’s Congress Standing Committee (NPCSC) Legal Affairs Commission, Mr. Zang, responded to the HK court’s ruling by announcing that only the NPCSC can deal with Basic Law constitutional questions. The Central Hong Kong and Macao office’s Liaison Office in HK made a statement too, also suggesting a similar argument.

This view seems plainly contrary to the system established under Article 158 of the Basic Law, which contemplates the possible consideration of constitutional questions by the HK courts prior to final determination by the NPCSC, as has occurred previously.

Zang’s reference to Article 160 but failure to mention Article 158 seems an attempt to read out of the Basic Law one of its major premises. That would be roughly analogous to a staff member of the US Supreme Court announcing that American state courts can no longer consider federal Constitutional issues and that such issues are only to be decided by the US Supreme Court in Washington.

It was bad enough when in practice some years ago the HK Government successfully asked the NPCSC to dispose of certain key legal issues before the HK courts had an opportunity to consider them. Will there now be an attempt to uniformly deny the HK courts any opportunity to consider such issues through an NPCSC reinterpretation that totally emasculates all but the first paragraph of Art. 158? I doubt it. The NPCSC is likely to content itself with invalidating the HK court decision without denying HK courts the right to have made it. But let’s see!

Another issue is whether the NPCSC will wait until its December scheduled session to opine or, because of the emergency and legal confusion now generated in HK, it will urgently deal with the case in the immediate future. I would not be surprised to see the latter occur.