We do not, thank goodness, have a local equivalent of Multiple Martial Arts on the White House lawn. But sensation seekers in search of a good punch-up can always depend on the relations between the Hong Kong government and its overseas critics.
So to an interesting piece of micro legislation, the Safeguarding National Security (Procedural Matters) Regulation. The main purpose of this, we are told, is to “clarify” what is a case involving national security.
This point is supposed to be covered by the local nat sec ordinance’s Section 7, but that masterful work, after naming three sets of legislation, concludes with “other offences endangering national security under the laws of the HKSAR”. Which offences might those be? According to the regulation this will be decided on a case-by-case basis by the HKSAR Chief Executive, who will issue a binding certificate which the court concerned must follow.
This is not new. The CE has this power under Article 47 of the 2020 nat sec law. The local nat sec law, aiming for patriotic overkill in this as in other matters, also specifically authorises the CE to create new offences, punishable with large fines or seven years in jail.
So does the new regulation change anything? Well in the Blue Corner we have the Washington Post editorial board: “At China’s behest, the city says people can now be charged retroactively for crimes that didn’t exist when they allegedly committed them… Under updates which took effect this week, the city’s chief executive can classify any case as a national security crime under the 2020 law, even when the alleged offense was committed before that law took effect.”
The board also points out that “Being charged with a national security offense carries enormous consequences for defendants. They can be jailed immediately and held for longer pre-trial detention periods. They are denied the ordinary presumption of innocence and denied bail. And they can be denied their choice of lawyer…”
In the Red Corner we have the HKSAR outraged press release department and a full deployment of the usual vocabulary: irrational anti-China stance… double standards … hypocrisy and double standards … ignorance of facts … falsely and maliciously claimed … betrayal of the basic tenets of responsible journalism …shocking, irresponsible and totally unacceptable behaviour … dirty tricks … bold-faced lies to smear the HKSAR.
The spokesperson (who is not, in my view, qualified to comment on what might or might not be responsible journalism) did get in some factual stuff, which went like this: “the Procedural Matters Regulation has no retrospective effect at all. It does not create any new offence or alter the penalties of any offence. It certainly does not turn any lawful conduct into an offence. It is not applicable to legal proceedings that are concluded.”
The spokesperson thought that this would be obvious to anyone who studied the regulation and observed the relevant Legco meetings. Well pardon me for not observing the Legco meetings. What legislators say in meetings is not law and what officials say they will do with upcoming law changes often turns out to be unreliable.
However we can look at the regulation and here we have to award some points to the spokesperson. It does not create new offences, it does not (at least not directly) alter the penalties for offences and it does not turn lawful conduct into an offence, which means the same thing as not creating new offences.
Defenders of the Washington Post, on the other hand, are not helpless. They can point to the regulation’s Section 2(a), which provides that the CE’s certificate is valid “regardless of whether the act was done or the prosecution was brought before, at the time or after the HK National Security Law came into operation.”
I take this to mean that if you are charged with an offence allegedly committed in 2019, before the Nat Sec law’s appearance in 2020, the CE can still by certificate turn this into a national security case, to be conducted under the nat sec case procedure. In many jurisdictions the idea of a seven-year-old offence being wheeled into court would be outlandish but here we still have thousands of people who were arrested in 2019 and have been neither charged nor told that they will not be.
So what can we conclude from all this? The Washington Post clearly did not put its misgivings about the regulation accurately. The regulation does not make something illegal which was not illegal before, and in that sense is not retroactive. On the other hand the Post has a point: changes to procedure may be retroactive and these have important implications for defendants.
The SAR’s spokesperson was too busy throwing abuse to consider this point. Would it be too much to hope for reasoned debate about matters of this kind?
tim's experiment 