Thank you, Mr. Chair, and thank you to the committee for inviting me. I hope I am heard okay.
I should note that in addition to being a U.S. scholar nowadays, I spent 30 years in Hong Kong as a professor of constitutional law and human rights, and I continue to teach there. I'll be teaching two human rights courses via Zoom this fall, so I am very much involved. I have been a public intellectual in Hong Kong throughout these many years.
What I want to talk about, as the constitutional lawyer who is starting this testimony, is about the rule of law and the national security law that's now been imposed on Hong Kong.
There are a number of questions about this law. The law itself seems to have a status as high as that of the Basic Law of Hong Kong; in fact, I would say it's higher, because under Chinese national law and legislation, the last law enacted—as is common in many countries—takes precedence over any conflicts with previous laws. The Basic Law of Hong Kong is an older law; it's more general, and the national security law is more specific.
The way it was enacted already imposed something on Hong Kong in a very offensive way. None of the law was leaked to the public until the day it was promulgated. We were told that even the chief executive did not know what was in the law. Contrary to China's own national law and legislation and Hong Kong's practice, there was no consultation with the public. This law was just imposed on Hong Kong.
The national security law, on its face, says that it's superior to all local laws. I would argue that it effectively includes the Basic Law of Hong Kong, which is the foundation of rights protection in Hong Kong.
The national security law says explicitly that the courts cannot really review it. It's not subject to constitutional review, and it's not subject to review under the Basic Law, so if a judge receives this law in court, he has to pretty much apply it, and the Standing Committee of the National People's Congress has the ultimate power to interpret it. The idea that the courts would stand as a guardian to protect us is not there in Hong Kong—and I can say I am a resident of Hong Kong, so I would refer to it as “us”. In Hong Kong we will have no opportunity to challenge some of the provisions in this law on subversion, sedition, collusion with foreign governments and so on, if this matter is brought to court.
There is an interesting twist in the law. It provides that only selected judges on a list can hear cases under the national security law, and the chief executive of Hong Kong is to construct that list. If a judge is on that list and he hears cases, if he acts or makes statements in any way that violate national security, then that judge will be dismissed from hearing such cases.
One of the ways that Hong Kong was to preserve the rule of law in the face of the mainland system, where they really don't have the rule of law, was that foreign judges, including Canadian ones, sit on Hong Kong courts. They will not be sitting on these national security cases because they will not be on the list of judges chosen by the chief executive of Hong Kong, so presumably the choice would be influenced by the expectation of how those judges would behave.
Given all of this pressure on judges, one wonders what they would do if they're confronted with statements from the foreign ministry in Beijing or from mainland officials now appointed in Hong Kong saying how they think a case should be treated.
We don't have to guess at this. Just this week, Jimmy Lai, the publisher of the Apple Daily, was arrested. While the Hong Kong officials referred to him as a “suspect”, he was suspected of collusion, apparently because he provided funding for an organization much like some of the organizations that are represented in testimony today that lobby foreign governments—usually overseas Hong Kong actors.
We don't know for sure because the enforcement of this law is done secretly, so we have a kind of secret police going on now. But presumably the word on the street, as it were, is that he funded an organization called Stand with Hong Kong. We'll see if that proves to be the case.
Interestingly, the foreign ministry immediately insulted him and said he represented a great threat to national security in Hong Kong; I forget the precise words. In any event, they almost prejudged the case. How will a judge react to this? If legal issues come up, knowing that the NPC can override their interpretation, how will they respond to these statements by mainland officials condemning the defendant before he is tried?
The autonomy of Hong Kong is very important. The reason autonomy was given to Hong Kong was that the mainland system is very much at odds with the Hong Kong system. In Hong Kong, as in Canada, we have the rule “of” law. In the mainland system, the common characterization is rule “by” law, where officials sort of stand above the law and take great liberties in interpreting the law.
Now the autonomy is undermined in two ways. One is that a local committee is created, headed by the chief executive, to oversee national security matters. All national security matters are under this committee locally. They would oversee what police can do. This committee has already issued regulations on how the police can behave, which enables searches without warrants, for one thing. There are judges and magistrates who can issue warrants, but those are not needed if the law enforcement officers feel there is some kind of urgency where they could go ahead and search in advance. This is one problem. Within the police, now there's a special unit on national security. Within the prosecution, there's also a special unit on national security. All of this is well lined up. The committee that oversees all of this in Hong Kong answers directly to the central people's government, so autonomy effectively goes out the window in this most sensitive area for Hong Kong's autonomy. Of course, national security is the most sensitive area.
On top of that, there's a mainland office on the safeguarding of national security that's totally staffed with mainland officials. Why they need that, I don't know, because they've also placed an adviser in the local committee. They have an adviser in the local committee who is to advise, but given that the central government is overriding the local committee, presumably that adviser can already supervise local actions. There is a separate office, and the office is totally staffed with mainland officials. People from the state security and public security branches of the mainland will staff that office. Neither the local committee nor that office is subject to review by the local courts. It expressly says in this law that the local committee is not subject to a review, and it says that local courts have no jurisdiction over that so-called office for safeguarding national security. Hong Kong's rule of law pretty much goes out the window here.
There is a long history in Hong Kong of mainland officials saying that when courts in Hong Kong have exercised constitutional review.... The mainland officials often say there is supposed to be no separation of powers in Hong Kong. The idea of the courts stepping up boldly, and challenging what mainland officials say, will be very difficult.
These are the kinds of problems that I thought were worth highlighting here, at the start of this hearing, because I'm sure that a lot of the events that bear out my concerns have occurred. I imagine other speakers will talk about them.
It's interesting to me that mainland officials in this national office, this office set up in Hong Kong, may not even be subject to any law, in a way, because under Hong Kong's Basic Law, only laws in Annex III of the Basic Law apply in Hong Kong. If a mainland official does something that violates mainland law, there will be no jurisdiction over him. In the exercise of his duties, if he violates local law, there will be no jurisdiction over him. We have a kind of secret police who have no real control over them.
I'll close with this. For Hong Kong, these things are very important, because these things are at the heart of why we have one country, two systems. The mainland officials can claim, if they want, that they're upholding one country, two systems, but the reality is that one country, two systems was to be upheld by the institutions in Hong Hong, which were separate from the mainland systems, and that separation has been totally collapsed.
I could write a long essay on human rights protections here as well, but my time is up, and I'd be happy to entertain questions.