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A few thoughts on what may happen when China's new national security law reaches HK courts since the expected ban on even peaceful advocacy of HK independence will likely breach Basic Law protection of freedom of speech, as interpreted by the courts in many previous cases.(1/11)
Judges in lower courts (e.g. Court of First Instance) will come under heavy pressure since only Court of Final Appeal can ask the Standing Committee for a Basic Law interpretation (which is a easy way of passing the buck and avoid ruling the new law breaches the Basic Law).(2/11)
Most likely, no judge wants to rule against the new law for fear of the consequences. But at the same time they must follow past Court of Final Appeal decisions on permitted limits to HK's freedoms, which will be very difficult to reconcile with restrictions under new law.(3/11)
Perhaps Standing Committee will give the courts a way out by unilaterally issuing an interpretation that the new law complies with the Basic Law (which the courts would then be legally obliged to follow). But don't count on it.(4/11)
China's attitude is that "of course" everything it does complies with the Basic Law and it would be a sign of weakness to issue an interpretation reiterating what it sees as obvious. Thinks courts should do the "right thing" without an interpretation.(5/11)
So will lower courts swallow hard, follow decisions in prior cases, rule new law violates Basic Law & face inevitable fireworks, attacks by Beijing + post-judgment interpretion from Standing Committee reversing their "wrong" ruling? Doubt many judges will want to do that.(6/11)
Yet very difficult for judges to do otherwise without tearing up 15 years of CFA decisions (something lower courts are not allowed to do) on the proportionality test which sets strict limits on restrictions on rights, including freedom of speech.(7/11)
If new law is written in same general language as most mainland laws, it won't even pass the first part of the proportionality test which requires that any restrictions on freedoms must be written in more precise language.(8/11)
Also extremely difficult to see how any law banning purely peaceful actions could pass the "no more than necessary" part of the proportionality test, which courts have held requires any restrictions on freedoms to be kept as small as possible. (9/11)
Who would want to be a judge in such circumstances? Outgoing Chief Justice Geoffrey Ma must be counting his blessings he already announced his resignation. Perhaps other judges will decide to head for the exists? (10/11)
All of this assumes HK courts will still be allowed to hear these cases, instead of being sent to mainland national security courts. Fully understand some may think otherwise & even question the value of conventional legal analysis at a time like this.(11/11)
