The newly imposed Hong Kong national-security law could “lead to the most outrageous things,” a long-time judge in the city has warned – although he expressed confidence in the city’s judicial system, saying he believes the city’s liberties continue to be safeguarded by the law and the courts.
Despite the seeming contradiction, the enactment of the law “is intended, I think, for the public good. Not to harm the public. Not to destroy Hong Kong,” said Henry Litton, who was one of the city’s foremost judges when he sat on the Court of Final Appeal. He retired from the judiciary a half-decade ago.
He is among the most senior figures in Hong Kong’s legal establishment to speak about a piece of legislation that has created fear in the city and anger abroad.
His view: “I think people are overreacting altogether to this law.”
The legislation, crafted by Beijing, creates a maximum penalty of life in prison for secession, subversion, terrorism and foreign influence.
Under the law, Chinese authorities in some circumstances can take people who have been charged with offences to the mainland to face justice there.
But the power to do so is circumscribed, and both the new law’s text and Hong Kong’s Basic Law, its constitutional document, continue to protect freedoms in the city, Mr. Litton told The Globe and Mail in an interview.
“The Basic Law guarantees Hong Kong residents freedom of expression,” he said. It is “very clear.”
The imposition of the law has generated widespread fear in Hong Kong. Libraries and schools have stripped books from their shelves written by pro-democracy activists, an act called “Orwellian” by U.S. Secretary of State Mike Pompeo.
The Foreign Correspondents’ Club (Hong Kong) has written to Carrie Lam, the city’s chief executive, to ask whether the law will create legal risks for journalists quoting government critics, making posts on social media or attending events outside China “where critical views might be expressed.”
Authorities in Hong Kong and Beijing have said the law is “mild” in nature and will re-establish calm in a city lashed by frequently violent protests over the past year.
Mr. Litton echoed that view, lashing out at critics who have pointed to the law as a threat to the liberties that have kept Hong Kong unique from the authoritarian imposition of justice in mainland China. According to the new law, state security agents are not subject to local rules while police have gained new powers to conduct searches without warrants, censor information, freeze assets and ban people from leaving the city.
But, he said in a comment directed at the media, “you guys would help to destroy Hong Kong by arousing a sense of frenzy and of fright, of alarm – of ignorant armies clashing by night,” he said.
He added: “If evil is to be really perpetrated, and so on, you don’t need a law to do that. You do it without law.”
Mr. Litton has been outspoken about protesters in the city, whose demands for democratic reforms he has called futile; and the judiciary in Hong Kong which, he has said, has grown out of touch with its core duties and with the legal problems it is meant to address. The national-security law shows “that Beijing seems to have lost confidence in the judicial system in Hong Kong to some degree,” he said.
“And frankly, I can’t blame them.”
At the same time, the new law employs language unfamiliar to judicial practice in Hong Kong’s common-law system, Mr. Litton said.
The ways in which mainland law are likely to interact with courts in mainland China “is something I find a bit troubling,” he said.
The law “talks about, for example, legal documents issued by the prosecuting authorities on the mainland to make mandatory measures,” he said. But if a search warrant or detention order is issued in Beijing, it’s not clear “to what extent the writ of habeas corpus can apply in those circumstances,” or to whether some “judicial process” can be involved in Hong Kong before a trial takes place in China. Habeas corpus is a legal principle that allows a person to question the lawfulness of their detention.
Mr. Litton also said elements of the law could “lead to the most outrageous things.”
He was referring to a pair of articles that obligated the Hong Kong government to strengthen supervision and regulation of “schools, universities, social organizations, the media, and the internet” and to strengthen management of “organs of foreign countries and international organizations in the Region, as well as non-governmental organizations and news agencies of foreign countries.”
But, he said, “if outrageous things are to be done, do you really need something like Article 9 or Article 54 to actually do it?”
He dismissed some criticism as fanciful. The law bans “provoking by unlawful means hatred” toward authorities in Hong Kong and China. “If you provoke by unlawful means – is it not acting unlawfully?” he said.
And though he is “puzzled” by sections of the law that extend its reach to anyone living anywhere, “I can’t see how it can arouse any concern,” he said. The law “can’t possibly have any application outside of Hong Kong.”
He is similarly conflicted about the provisions that could result in people from Hong Kong undergoing trial in mainland China. That possibility is a focus of “concern,” he said, while at the same time he expressed doubt over the potential grounds for sending someone out of the city for criminal proceedings. “I can’t think at the moment of any circumstances where the Hong Kong system cannot effectively enforce this law,” he said.
Could the law be used to exact heavy punishment for trivial matters? After all, some of the first people arrested under the law were accused of holdings signs and banners declaring Hong Kong independence, a slogan local authorities have now expressly banned.
Such measures have yet to be tested by courts, however. And if the case involves “a rather guileless young man holding a banner and so on, and he’s got really no association or connection with any movement aimed at the secession of Hong Kong from the mainland … he would be acquitted under this law,” Mr. Litton said.
The law makes bail more difficult, but doesn’t erase the presumption of innocence. Hong Kong itself remains a city with judges and lawyers steeped in a system with a history of independent adjudication. Mr. Litton professed ignorance about the function of justice in mainland China.
But the legal foundation in Hong Kong should dispel some of the fears about how the law will affect the city, he said.
“The Hong Kong judicial system at the moment is firmly embedded in the common law,” he said. And “you are talking about the Hong Kong judicial system administering a law which now becomes a Hong Kong law.”
He added; “You can mistrust, if you wish, the judicial system in Hong Kong. That’s fair enough. That’s open to debate. But to say that the Hong Kong courts practise a mainland system is just crazy.”
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