Release of Details on Hong Kong Security Law Raises More Questions

On Saturday, the National People’s Congress released a summary of proposed controversial national security legislation for Hong Kong. Among other things, the Hong Kong Special Administrative Region Law on the Preservation of National Security will assert that Beijing “has basic responsibility for matters of national security and for the constitutional responsibility of the Hong Kong Special Administrative Region to preserve national security.” At CNN, James Griffiths analyzes the proposed changes and its potential impact on rule of law and human rights in Hong Kong:

When Hong Kong was handed over from British to Chinese rule in 1997, the city’s common law system remained largely intact. Precedent remained in force, and protections under the new de facto constitution, Basic Law, as well as various international treaties, guaranteed a degree of fairness and freedom not seen in China, where the conviction rate is north of 90%.

While the NPC did gain the ability to “interpret” Basic Law, essentially rewriting it in certain cases, the central government did not have any jurisdiction over individual cases, nor could people be tried for crimes against Beijing that were not illegal in Hong Kong.

The new national security law would change all of that. According to details published over the weekend, Chinese security organs will have the power to “exercise jurisdiction” over national security cases “under specific circumstances,” while other prosecutions under the law will be heard by a panel of judges picked by the city’s Beijing-appointed leader.

[…] Though the draft did make reference to upholding the “rule of law” and various civil liberties, it also subordinates existing law to the national security bill, so that where there is a conflict, the national security law prevails. In practice, this could mean that when a national security prosecution contravenes human rights protected under Hong Kong law, those rights are suspended. [Source]

At The New York Times, Chris Buckley, Keith Bradsher, and Elaine Yu further report on the new law and reaction to it from democracy advocates in Hong Kong:

The explanation of the national security law for Hong Kong included other key points:

  • The legislation will order the Hong Kong government to “strengthen oversight and management” of schools and associations in national security matters, suggesting the law could be used to try to stifle campus unrest.
  • The law will require Hong Kong to establish its own national security commission, in parallel to the central government’s security apparatus, and Beijing will assign at least one adviser.
  • China will establish its own national security arm in Hong Kong, separate from the territory’s own security commission, to “collect and analyze” intelligence and handle certain cases.
  • The national security law must always prevail if it comes into conflict with local Hong Kong laws.

The official explanation says that the Chinese national security office stationed in Hong Kong will have jurisdiction in “a tiny number” of cases. But it does not detail which cases. Nor does it say whether crime suspects could face extradition to mainland China.

[…] The official statement released Saturday said the proposed law would define crimes of separatism, subversion, terrorism and “colluding with foreign powers,” but did not provide details. Mr. Tam, the lawmaker from Hong Kong, told reporters that offenders could face up to 10 years in prison. [Source]

In an analysis of the summary, NPC Observer notes that the law will establish a new central government agency in Hong Kong, the Office of the National Security Commissioner (维护国家安全公署), as well as a new Hong Kong institution, a Commission for Safeguarding National Security (维护国家安全委员会). It also lists four new national security crimes—secessionism, subversion of state power, terrorism, and collusion with foreign or external forces to endanger national security—while failing to provide any definitions of those crimes. NPC Observer writes: “The excerpt does not define any of the crimes, but does say that Chapter III includes six subparts, so it would appear that the crimes are not as cursorily defined as are their counterparts in the mainland’s Criminal Law.” Mainland officials routinely use “endangering national security” as a catchall crime to imprison writers, activists, dissidents, and others whose views publicly clash with the government’s.

While the government only released a summary of the draft, some have called for a release of the full text to clarify lingering questions about the legislation’s reach. Anna Fifield, Gerry Shih, and Shibani Mahtani report for the Washington Post:

The Hong Kong Bar Association said it was “deeply concerned” about the details published to date and called on Beijing to release the law so lawyers could properly analyze its provisions.

Antony Dapiran, a Hong Kong-based lawyer and author, said he was “struck by how deeply it intervenes in the government and legal system, creating a whole new government body and departments.”

The details as released, he said, undermine any notion of an independent judiciary and separation of power. Having an entire infrastructure to apply the new legislation also undermines reassurances from officials that it will only be used against a “very small minority,” he said. [Source]

Legal scholar Jerome Cohen has listed the “information withheld” from the summary draft:

There is not a word about extradition, there is no clear light about jury trials and care NOT to use the anticipated term “special court” to describe arrangements for what is in effect a special court, no mention of the privilege against self-incrimination, no details about whether the Chief Executive will pick judges for each case or only for the special panel from which they will be selected, no mention of whether foreign judges will be excluded from the security trials, and so many other judicial issues skirted, including how courts are to receive interpretations of the NPCSC in cases that raise issues of statutory interpretation or constitutional questions. Also still a mystery is whether the public will be given a formal chance to submit written comments on this fragmentary material or if it will be left to the restricted channels currently existing for registering popular reactions. [Source]

Jeremy Daum at China Law Translate similarly gives an overview of the parts of the law that remain obscured:

As a counterbalance, the summary is peppered with broad assurances that national security actions will be restrained in Hong Kong. Rights, such as to speech, press, association, and even demonstration are to be protected. The presumption of innocence is preserved, double-jeopardy forbidden, and defense rights protected. Central government authorities will follow Hong Kong laws, and only prosecute for conduct clearly criminalized by law, and the Hong Kong authorities will retain jurisdiction over almost all cases, except in certain specified situations.

And this is where the unknowns come in. We hear little about what cases are taken out of Hong Kong’s jurisdiction and how. We know that the crimes to be considered in the law are limited to secession, subversion of state power, terrorism, and colluding with foreign powers to endanger national security. We know that Chapter III of the law is entitled “Crimes and Punishments” and contains 6 separate sections explaining the different situations that will constitute these offenses and provide for their punishment, but can’t see those explanations. We know that even in cases handled by the Hong Kong authorities, specially designated law enforcement, prosecutors, and judges will handle cases of national security crimes, and that the government will have powers beyond those in other criminal cases, but we have no idea what that looks like in practice.

Perhaps the reason that much of this hasn’t yet been released yet, is that it is still being debated and revised. China is walking an impossible line with this law, working to restore stability and control, but knowing that release of the law itself could cause renewed unrest. The assurances of rights and local autonomy show recognition that at least lip service be played to these ends, and hopefully, the idea that perceptions of legitimacy brings the most stability might guide the drafting. The lack of public information on the law, however, is a step in the wrong direction. [Source]

Beijing’s assurances have done little to quell foreign NGOs and human rights groups’ fears that the law will threaten their activities and fundraising in Hong Kong while putting their staff at risk. Laura Westbrook reports for the South China Morning Post:

Joshua Rosenzweig, Hong Kong-based head of Amnesty International’s China team, responded to the new details by saying it was better for the legislation to contain the guarantees, but that international human rights law allow for restrictions to be placed on certain rights, such as freedom of expression or peaceful assembly, in the name of “national security”.

“If the definition of ‘national security’ is defined too broadly … then the guarantee on paper doesn’t actually mean much.”

Beijing has insisted the law would affect only a minority of lawbreakers, but human rights groups fear they will be targeted as well, just as they have been affected on the mainland by China’s national security law.

“What they’re trying to do is extend the China model to Hong Kong. After this law is passed, everything is going to change,” Phil Robertson, the Bangkok-based deputy director of Human Rights Watch, said before details of the legislation were released. [Source]

The Hong Kong Free Press rounded up responses to the legislation from Hong Kong government officials, local and international politicians, activists, and legal experts. Many who have been active in the 2019 protests—which first opposed a proposed extradition law and then advocated for full democracy in Hong Kong—have expressed fears that the new law will effectively silence their movement.

The law is expected to be discussed and possibly voted on at a special session of the National People’s Congress scheduled for June 28-30. Some observers expect it to be implemented before September, when Hong Kong will hold Legislative Council elections, which many see as a referendum on Hong Kong’s autonomy. In last year’s district council election, the pro-democracy camp won in a landslide. The new law contains a provision requiring all candidates to pledge allegiance to the Basic Law (Hong Kong’s constitution), including the new national security provisions. In 2016, several candidates were disqualified after refusing to take an oath of loyalty to Hong Kong and to the People’s Republic of China. Joshua Wong, an Umbrella Movement student leader, was disqualified from running for election in 2019, but has vowed to run again in 2020.


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