National security Law / National Anthem Legislation

NPCSC has no power to add security law into annex’

The Hong Kong Bar Association (HKBA) on Monday flagged up what it said are a number of worrying problems regarding the plan to impose a national security law on Hong Kong, including that it believes Beijing has no power under the Basic Law to insert the legislation into Annex III as intended.

The HKBA says there is no clarity on how mainland security agencies set up in the SAR will operate under Hong Kong law, and there are fears the judiciary will be instructed to act in a particular way to “prevent, stop and punish acts endangering national security”.

The association notes that Article 18 of the Basic Law says laws included in Annex III shall be confined to those relating to defence and foreign affairs or matters outside the limits of the autonomy of the SAR, while Article 23 states that Hong Kong shall enact its own laws covering treason, secession, sedition, subversion and in relation to foreign interference.

With Articles 66 and 73 making it clear that Legco is responsible for enacting such laws, “it would therefore appear that the NPCSC has no power to add the HK National Security Law under Annex III of the Basic Law via the mechanism provided under Article 18,” the HKBA said.

A statement on the association’s website says there is no assurance that the national security law will comply with provisions of the International Covenant on Civil and Political Rights, which is entrenched in the Basic Law, and no guarantee that the public will be consulted on the law before it is promulgated.

“This is unprecedented. The public must be allowed the opportunity to properly consider and debate about proposed laws which affect their personal rights and obligations,” the HKBA says.

Its statement then sounds the alarm over the plan to allow mainland security organs to set up agencies in Hong Kong.

“It is entirely unclear how the proposed agencies set up in the HKSAR will operate under the laws of the HKSAR, whether they will be bound by the laws of the HKSAR, whether they have power of enforcement, and whether such powers as exercised will be limited by the laws currently in force in the HKSAR.”

Finally, the association expresses concern over the mention in Beijing’s “Draft Decision” on the upcoming law that Hong Kong’s administrative, legislative and judicial organs must effectively prevent, stop and punish acts endangering national security.

“The reference to ‘judicial organs’ gives rise to perceptions that the judiciary of the HKSAR is being or will be instructed to act in a particular way. Independence of the judiciary is the cornerstone of the success of the HKSAR and should not be undermined in any way.”

The statement says news of the imminent enactment of the national security law has caused “deep unease” in the city as well as abroad, and the HKBA calls on the SAR government to address the constitutional and legal concerns raised as a matter of urgency.

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