China Power | Politics | East Asia

Will China’s New National Security Law Be the ‘Anti-Virus’ Software That Locks Down Hong Kong?

Parsing the legislative, judicial, and law enforcement implications of the NPC’s “bombshell” decision.

By Jerome A. Cohen for
Will China’s New National Security Law Be the ‘Anti-Virus’ Software That Locks Down Hong Kong?
Credit: Flickr/ Studio Incendo

The burgeoning crisis over Beijing’s forthcoming National Security Law for Hong Kong (NSL) has focused attention on the June 18-20 session of China’s National People’s Congress Standing Committee. Much ink has already been spilled since the May 28 decision of the National People’s Congress (NPC) that instructed its Standing Committee to adopt legislation punishing acts of secession, subversion, terrorism, or foreign interference in the former British colony. The decision, with the cumbersome title “Establishing and Improving a Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region (SAR) to Safeguard National Security,” authorizes not only punishment of this broad range of as-yet undefined misconduct but also the establishment in Hong Kong, “as necessary,” of national security organizations, i.e., Beijing-directed secret police.

What this might mean has until now been left to disturbing speculation, largely by Hong Kong government officials and other pro-Beijing advocates. On the one hand, they claim not to have seen any draft law. On the other, they appear to have inside information. Informed national officials confidently liken the forthcoming law to “an anti-virus software” that will guarantee a new era for the SAR, a “second return” to the motherland. They forecast minimal impact on civil liberties. Yet their every statement creates greater doubt. What follows is an analysis of the legislative, judicial, and law enforcement implications of this unfolding situation.

Proposal of the decision itself, which one astute critic termed “the mother of all bombshells,” was even a surprise to Hong Kong’s delegates to last month’s NPC session of almost 3,000 members. Presumably the SAR’s single representative on the 175-member Standing Committee will have greater access to formulation of the required implementing legislation. But what about the people of Hong Kong? Will they have a chance to make comments and suggest revisions before enactment?

In recent years, in accordance with China’s impressive Law on Legislation, after a first consideration of a bill by the Standing Committee, the public has usually been presented with the contemplated draft and allowed 30 to 60 days to submit written responses before a subsequent draft is finalized at a second or more usual third session. Yet the forthcoming NSL has not even been initially listed on the agenda for this week’s Standing Committee session, although this can still be done at the very last minute, or a special session can be scheduled. Failure of this week’s session to consider the draft, which has apparently been under way for months, would suggest the inability of the Chinese Communist Party leadership to reach consensus on the complex challenges involved. And failure to allow the public an opportunity to comment on whatever draft might be produced would diminish the persuasiveness and legitimacy of both the process and its product.

Indeed, regardless of the procedures employed and the law’s content, the forthcoming NSL has already suffered grave doubts about its legitimacy. It is being enacted in apparent violation of the expectations generated by the 1984 Sino-British Joint Declaration on Hong Kong and the Basic Law for Hong Kong adopted by the NPC in 1990 to implement that treaty. Article 23 of the Basic Law plainly states that it is Hong Kong’s Legislative Council (LegCo) — not the NPC or its Standing Committee — that is required to adopt a NSL for the SAR “on its own,” i.e., without central government interference. Yet, because of massive public opposition, since the U.K.’s 1997 “handover” of Hong Kong to China, LegCo has never fulfilled its Article 23 duty.

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This is what has led Beijing to rely on a strained interpretation of the Basic Law in order to justify the NPC legislating for Hong Kong, even while maintaining that LegCo must still fulfill its obligation. Party leaders seem desperate to enact an NSL before this September’s LegCo election, in order to manipulate the law to make certain that democratic candidates do not win majority control. The Hong Kong government might disqualify troublesome candidates for alleged violations of the NSL or postpone, cancel, or invalidate the election itself.

Chinese central and local government officials purport to see no basis for concern in this bold legislative legerdemain, despite the uproar it has caused in Hong Kong and abroad. After all, they argue, every country has a right to an NSL. China has one for the rest of the nation. Why should Hong Kong be exempt?

Yet national security laws vary greatly in both content and implementation. Democratic countries struggle to limit them in both theory and practice in order to maintain the rule of law and protect civil liberties and due process in the administration of justice. The Chinese Party-state, by contrast, is notorious for its application of vague and comprehensive national security legislation to thoroughly repress freedoms of expression and religion and to arbitrarily impose a broad range of sanctions, including protean surveillance, secret investigations, incommunicado detentions, endemic torture, unfair trials, and the death penalty.

Is this what Hong Kong can now expect? Although China has concluded extradition treaties with many countries, it has not concluded one with a democracy based on the Anglo-American legal system. To its embarrassment, it does not even have such an agreement with Hong Kong, its own territory, 23 years after the handover, precisely because Hong Kong people, accustomed to the legal protections of a common law system, rightly fear being forcibly transferred to mainland justice. That was dramatically demonstrated in last year’s unprecedented mass protests against the attempt to have LegCo authorize rendition to the mainland of anyone charged by Beijing with an ostensibly conventional crime – not, at least in theory, any political offense. Yet, having failed in its attempt to bring targeted people in Hong Kong to face mainland justice for supposedly non-political offenses, what Beijing is now doing, through the NSL, is bringing mainland justice – for explicitly political offenses — to all of Hong Kong.

Once the NSL is adopted, can this be prevented? So many legal questions must be confronted, including questions of international law, especially whether the NSL will violate the protections the International Covenant on Civil and Political Rights guarantees Hong Kong people under the Joint Declaration and the Basic Law. The answer to that question will depend on the NSL’s domestic constitutional and criminal justice arrangements.

One fundamental question is whether Beijing will permit Hong Kong courts to deal with international and constitutional NSL issues and matters of statutory interpretation. Experience suggests that the Standing Committee may preempt certain issues or overrule relevant judicial decisions.

What will be the scope of the conduct proscribed by the NSL? Will definitions be given to “secession,” “subversion,” “terrorism,” and “foreign interference”? Will they be the broad, all-encompassing ones applied by the Chinese Communists since, in the early 1950s, they imported the Soviet justice model, itself a distortion of continental European systems? Or the much narrower ones often employed in Hong Kong’s traditional common law system?

Who will interpret and apply these new political-legal norms in Hong Kong? Will it be the ordinary courts staffed by regular judges, including the many foreigners who have been allowed by the Basic Law to serve as SAR judges? Extremely worrisome are remarks by the secretary for justice, Teresa Cheng, indicating that the NSL may well establish a special court for its cases. Will that assure the continuing fairness, impartiality, and independence of the judiciary that has been Hong Kong’s pride?

The recent statement of concern by the Hong Kong Bar Association emphasizes that NSL prosecutions “should be in strict accordance with the normal criminal procedures applying in Hong Kong courts.” Will the usual pre-trial protections benefit NSL suspects? Habeas corpus? Bail? The privilege against self-incrimination? The right to promptly consult defense counsel? The right to confront and cross-examine accusers?

Will trial by jury continue to be available for major offenses? In what circumstances will an open trial be denied? Will customary evidence rules be respected? Given Beijing’s track record in the mainland, what credence can be given to its claim that the presumption of innocence will be observed? What about traditional rules for limiting sentences? Will trials be allowed despite the absence of the accused? Contrary to current assurances, will judges be instructed to permit NSL application to acts committed before its promulgation?

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The secretary for justice has assured the public that her department will continue to bring prosecutions in accordance with the usual criteria. Yet, even before proposal of the NPC Decision, experts, including the chairman of the Bar Association, criticized her department for a long-standing mechanical approach to police requests for initiating prosecutions rather than an appropriate exercise of prosecutor’s discretion that would result in fewer prosecutions. Will NSL cases be treated differently?

Some inkling of how far prosecutions under the NSL may reach can be gathered from the strong defense of the anticipated NSL by the now retired director of public prosecutions, Grenville Cross. For example, he expects that those in Hong Kong who offer support – dues? attendance at a meeting? advocacy? – to a local organization that has supported an organization politically banned on the mainland might well be subjected to prosecution. This is a far cry from soothing claims by pro-government voices that prosecutions will focus on violent protesters and vandals, something already done under existing law.

Will it constitute criminal “secession” for high school students to continue to sing “Glory to Hong Kong,” last year’s protest favorite? Will it be “subversion” for the media, democratic politicians, university professors and NGOs to criticize the NSL? Will a peaceful protester’s resistance to arrest be deemed an act of “terrorism” rather than a minor offense? Will the assistance of foreign charitable foundations to local civic groups constitute indictable “foreign interference”? Surely “foreign interference” will not be limited to the often alleged, but not yet proven, interventions of the CIA or Taiwanese agents. Do I dare give another lecture on China’s human rights violations to the city’s Foreign Correspondents Club or Hong Kong University?

While the NSL raises many legislative and judicial doubts, there is no doubt about the major extrajudicial feature of the forthcoming law – the open establishment in Hong Kong of offices for the mainland secret police, who have until now had to operate behind the scenes there. This is likely to have an even greater coercive impact on the community than changes in the legislative and judicial systems. Despite the Party-state’s obsessive nontransparency, a huge amount of evidence exists about the security agencies’ successful intimidation of China’s 1.4 billion people.

An informal “invitation to tea” with officers of the Ministry of State Security or the Ministry of Public Security, or their visit to one’s home, place of employment, relatives, or children’s school, works wonders in silencing mainlanders, who understandably fear arbitrary detention. It has already been confirmed that these organizations will instruct a new special unit of the Hong Kong police in the exercise of effective investigative techniques. Some sophisticated defenders of this momentous change argue that it will improve upon the existing situation, where kidnappings or violent attacks by local thugs occasionally take place in clandestine cooperation with mainland secret police.

Most recently, some authoritative PRC officials have even claimed that the NPC Decision’s law enforcement provision also authorizes the prosecution of a very small number of the worst NSL violators not in Hong Kong but in the mainland, a shocking extension of what the Decision implies. This has created outrage and confusion, even among some supporters of the NSL. And Hong Kong’s sole delegate to the NPCSC has just added fuel to the fire by claiming that this “could be done” under the NSL at least in cases of “foreign interference” since the Basic Law allows the central government to regulate foreign affairs for Hong Kong. This, he claimed, would justify forced extraditions of the accused from Hong Kong to the mainland. Presumably the alleged foreign interferers as well as implicated Hong Kongers would be subject to this long-feared measure.

Will the pressure mobilized by adverse popular reactions in Hong Kong and widespread condemnation by democratic countries, including Taiwan, have a moderating influence on the final drafting of the NSL and its implementation? Thus far, optimistic assurances have come from central and local Chinese officials, pro-Beijing political figures and commentators, and uninformed but coerced business moguls. They claim that the new law will have very narrow application, “cure Hong Kong’s festering political wounds,” and restore stability. Implicitly acknowledging the insufficiency of such assurances, Chinese officials have recently sought to make this major change more attractive, indicating that, if successful, it might be extended beyond the scheduled expiration of “one country, two systems” in 2047. Unless Beijing imposes exit controls, however, many talented and dynamic Hong Kongers may not wait to find out.

Jerome A. Cohen, an adjunct senior fellow at the Council on Foreign Relations, is professor of law at NYU and founding director of the US-Asia Law Institute.