'Teresa Cheng's Security Law Comments Make No Sense'

Members of the Bar Association council have criticised Justice Secretary Teresa Cheng for saying it will be impractical for the upcoming national security law to be exactly in line with Hong Kong’s common law system.

Speaking on an RTHK radio programme on Monday, the association's vice chair Anita Yip said that Cheng's comments made no sense because Article 8 of the Basic Law clearly states that common law is the system that is practised in the SAR.

Yip said that if the national security law is not drafted in accordance with common law, then it could lead to problems when judges try to interpret it, which could in turn impact the rule of law in Hong Kong.

She also said that Cheng's assertion that Hong Kong's common law system had some things in common with the mainland's civil law system was not enough to dispel concerns, because the application of laws under the mainland system is different to that in Hong Kong.

Yip said that the common law system has some important human rights safeguards in place, but in the mainland, for example, suspects who have been detained cannot be visited by a lawyer. She added that a number of human rights lawyers detained on the mainland were not given an open trial.

Her comments were echoed by Erik Shum, a member of the Bar Association's council, who said that some of these safeguards aren't clearly stated in the statutory and civil law systems.

"Open and transparent justice in terms of criminal procedure, the trial by jury, and the 48 hours detention is the maximum in our law. Habeas corpus is another example. All these should be applicable notwithstanding the new law," Shum said.

"If the national [security] law is drafted in a very vague way, then everybody has to adapt to the new system, and the lawyers would not be able to defend on our normal legal knowledge in court, the judges themselves will not be able to know what standards and interpretation tools they would apply in these sorts of cases."

Shum said this could easily lead to an interpretation of the Basic Law, which he said would deal a huge blow to the rule of law in Hong Kong.