Under the National Security (Legislative Provisions) Bill on 13 February, the Chief Justice may make rules for a closed-door appeal hearing against any proscription decision in the absence of the appellant and/or any of his legal representatives. The appellant could also be denied full particulars of the reasons for the proscription. Solicitor General, Bob Allcock, wrote an article on 25 February to dispel fears and provide legal justifications on the new procedure.

 

In the past, the "secret trials" rules in the UK and Canada only applied in immigration decisions which do not apply to nationals and permanent residents. Mr. Allcock is right on the fact that such rules are now applicable in dealing with terrorists in the UK Terrorism Act 2000 and UK Anti-terrorism, Crime and Security Act 2001. Having said this, the rules in UK Anti-terrorism, Crime and Security Act 2001 are still limited to "suspected international terrorists" who are not UK nationals or residents. In Terrorism Act 2000, the proscription mechanism only applies to groups that carry out terrorist activities within the UK. However, the current Bill, if enacted, will be applicable to all members of the proscribed local organization, regardless of his/her nationality and residency status. In addition, it is unnecessary to prove the proscribed local organization has carried out any unlawful activities within Hong Kong, only that it is subordinate to a mainland proscribed organization and is necessary in the interests of national security, to be decided by the Security Chief.

 

The appellant doesn't have the right to know the evidence for which an organization is proscribed is something really unheard of and unseen previously in Hong Kong. The law in Hong Kong already has safeguards to prevent sensitive information being divulged. Even without the National Security Bill, the court can conduct parts of the proceedings behind closed doors. But both sides in the case have access to the details.

 

The Bar association has already expressed serious concern over the issue. It said in its statement on 13 February, "[t]he procedural mechanism for proscription and appeals from orders of proscription, which may involve the exclusion the person affected from the hearing, may give rise to questions of compatibility with Article 35 of the Basic Law which guarantees persons right of access to a court."

 

To view Mr. Bob Allcock's article, please click here.