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26 May 2020

Hong Kong Bar Association challenges China's 'worrying' national security law

Proposals would allow China to install state security agencies in the former British territory

Riot police shoot tear gas canisters to disperse protestors in Causeway Bay, Hong Kong, during protests against the proposed new law on 24 May Thomas Yau/Shutterstock

The Hong Kong Bar Association has criticised Beijing’s draft decision for a Hong Kong National Security Law as “worrying” and “problematic” amid renewed pro-democracy protests in the city.

The association said that while the law has yet to be publicised, details in the draft decision raise questions about whether China’s National People’s Congress has the power to add the legislation under existing law, as well as concerns about whether it will comply with international human rights law or whether the public will have a chance to scrutinise the proposals.

In a statement, the Hong Kong Bar Association said: “There is no assurance that public consultation will take place at all on this vastly important legislation prior to promulgation. 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 proposed law seeks to penalise acts of secession, subverting state power, organising and carrying out terrorist activities and other behaviours that are a threat to national security, and interference in domestic affairs by foreign or external forces.

The draft decision also outlines that under the legislation the Chinese government would be permitted to install state security agencies in Hong Kong to safeguard China’s national security interests.

The association said: “It is entirely unclear how the proposed agencies set up in the Hong Kong Special Administrative Region (HKSAR) will operate under the laws of HKSAR, whether they have power of enforcement, and whether such powers as exercised will be limited by the laws currently enforced in the HKSAR.”

It added that it is also unclear how this arrangement would comply with an existing clause of Hong Kong’s Basic Law — put in place when the UK handed the former British territory back to China as part of the ‘one country, two systems’ principle that will last until 2047—that stipulates no department of China’s government can interfere in the administration of local affairs.

Plans for the new legislation have not just been met with opposition in Hong Kong, but also abroad. The US said it would consider imposing sanctions on Hong Kong and China if the law comes into force.

Previous efforts to introduce a national security law in 2003 were met with protests as Hong Kong residents pushed back over concerns about freedom of speech and freedom of the press, leading to the proposal being dropped.

In April, the International Bar Association’s Human Rights Institute condemned the arrests of 15 pro-democracy figures in Hong Kong over their role in the protests, including democratic politician and legislator Martin Lee QC and barrister Dr Margaret Ng.

In April, Osborne Clarke cited "disruption and uncertainty triggered by the lengthy political protests compounded by the coronavirus pandemic" as reasons for its decision to close its two-partner Hong Kong office, while Orrick signalled its decision to close its office a month earlier.

Meanwhile, the Hong Kong Law Society has condemnded an attack on one of its members on 24 May by protestors. According to the South China Morning Post, the attack happened a few streets away from protests against the proposed national security law after the solicitor got into an argument with dozens of protestors.

In a statement, the society noted "with sadness" that the solicitor had been hospitalised and the matter has been reported to the police.

"The Law Society reiterates that all forms of violence, which are to be deplored as an affront to the rule of law, must stop immediately," it added.

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