When Beijing announced it would impose a national security law on Hong Kong six weeks ago, many people feared the legislation could extend China’s authoritarian reach over the semi-autonomous city and undermine its cherished rule of law.
Some Hong Kong officials tried to allay those concerns, despite admitting they had not yet seen a draft of the law – which was written behind closed doors in Beijing. With the full text of the law finally available for dissection, however, a number of legal experts have found their worst fears confirmed.
“(It’s) even worse than the worst-case scenario I had expected,” Eric Cheung, a legal scholar at the University of Hong Kong, said on Facebook hours after the law was released late Monday, adding the legislation was “full of features of China’s socialist legal system, and is poles apart from the spirit and the legal language of Hong Kong’s common law.”
Since its handover to China in 1997, Hong Kong has maintained the common law system inherited from the territory’s 150 years under British colonial rule. Its independent judiciary and robust rule of law have long been deemed key to the city’s success as a global financial center.
Hong Kong and Beijing officials have argued the law is necessary and overdue, and promised it will only affect a tiny minority of Hong Kongers, while returning “stability and prosperity” to the city.
“The national security law is a crucial step to ending chaos and violence that has occurred over the past few months,” Carrie Lam, the city’s chief executive, said Wednesday. “It’s a law that has been introduced to keep Hong Kong safe. The legislation is lawful, constitutional and reasonable.”
Chinese officials have stressed the national security law is “tailor-made” for Hong Kong, and is different from the Chinese version enacted in the mainland. But in many ways, the legislation still bears a serious resemblance.
And with the law now in force, the city – and its legal system – is facing a new reality.
In China, the judiciary is under the “absolute leadership” of the Communist Party. Political loyalty to the party is a top requirement for judges. Courts are seen first and foremost as a “political organ,” according to the country’s Chief Justice Zhou Qiang.
Zhou has even warned judges against the idea of an independent judiciary – calling it a Western “trap.”
“We should resolutely resist erroneous influence from the West, such as ‘constitutional democracy,’ ‘separation of powers’ and ‘judicial independence,’” Zhou, the head of the Supreme People’s Court of China, told legal officials in 2017.
Chinese courts – along with prosecutors and police – are overseen by the party’s powerful Central Political and Legal Affair Commissions and their local branches, which frequently make the call on political sensitive cases like national security.
“In these cases, the courts and the prosecutor’s offices don’t have room to say much,” said Teng Biao, a Chinese human rights lawyer who now lives in the United States. “It is all controlled by the Communist Party.”
Unlike on the mainland, Hong Kong courts operate independently under a common law system similar to the UK and Australia. Under the national security law, Hong Kong’s leader will appoint a new panel of judges to handle national security cases – which critics said could enable the government to pick judges that are potentially sympathetic to particular issues.
“The independence of the judiciary is undermined,” the Hong Kong Bar Association said in a statement Tuesday.
Vaguely and broadly defined crimes
In China, national security crimes are so vaguely defined that they have previously been used by authorities as a pretext to crush dissent, jailing democracy advocates, human rights lawyers, social activists and journalists.
Nobel Peace Prize laureate Liu Xiaobo, for example, was sentenced to 11 years in prison for “inciting subversion of state power.” Prior to his arrest, Liu helped draft a manifesto calling for democracy and political reform in China. He died from liver cancer in custody in 2017.
The four offenses outlined in the national security law for Hong Kong – secession, subversion of state power, terrorist activities, and collusion with foreign forces to endanger national security – are also loosely worded.
“They are widely drawn and … are capable of being applied in a manner that is arbitrary, and that disproportionately interferes with fundamental rights, including the freedom of conscience, expression and assembly,” the Hong Kong Bar Association said.
The offense of secession, it noted, can be committed with or without violence, giving rise to concern whether it might prohibit mere speech or any peaceful advocacy.
On Tuesday, Hong Kong police arrested 10 people under the national security law during a protest. At least six of them were arrested for holding flags, placards or carrying with them printed materials containing the words “Hong Kong independence.”
Some protesters also chanted slogans in support of independence. In a statement, the police said they were “suspected to be inciting or abetting others to commit secession and may therefore violate the National Security Law.”
The offenses listed under the new law are also broad in scope – attacking government facilities can be considered subversion, while damaging public transport can be regarded as an act of terrorism. Both are tactics used by protesters during last year’s pro-democracy protests.
The law also criminalizes stealing, spying on, or illegally providing “state secrets or intelligence concerning national security” to a foreign country, organization or individual, without specifying what constitutes such secrets or intelligence.
In mainland China, authorities have used a similar offense to target journalists. In 2015, veteran Chinese reporter Gao Yu was handed a seven-year jail sentence for “illegally providing state secrets to foreign entities.” She was accused of disclosing the so-called “Document No.9” – an internal Communist Party document that laid out its campaign against liberal Western ideas – to an overseas Chinese-language news organization.
Broad powers of secretive agencies
Yet it’s not only the vague definitions of crimes that have experts worried.
“If mainland practice to date is any guide – and it is – then the definitions don’t matter that much. Anything can be stretched as necessary to cover something done by the person being targeted,” Donald Clark, an expert in Chinese law at the George Washington University Law School, said in a blog post.
Instead, he said, “the key is in the institutions and procedures the law establishes and empowers.”
The law grants broad powers to two new agencies set up to safeguard national security in Hong Kong – a committee led by the city’s chief executive and staffed by Hong Kong officials, and an office set up directly by the central Chinese government.
Under the law, the Hong Kong government’s national security committee will keep its work confidential, and its decisions cannot be legally challenged by a court. The office under the central government enjoys even more freedom. According to the law, when carrying out duties, the office and its staff will not be subject to Hong Kong’s jurisdiction, and Hong Kong police cannot inspect, search or detain its staff members or vehicles.
“In other words, they are untouchable under Hong Kong law. This is real Gestapo-level stuff,” Clark said, referring to the secret police of Nazi Germany.
Teng, the Chinese human rights lawyer, said the provision echoes the way national security agents operate in mainland China.
“Although nominally they need to obey criminal procedural laws and other Chinese laws, the state security authorities are seldom bound by the courts and are only controlled by the Communist Party,” he said.
According to the law, the central government’s office in Hong Kong can also take over national security cases if they are alleged to involve foreign forces, pose a major national security threat, or cannot be effectively handled by local authorities.
These cases will be handed over to Chinese authorities on the mainland for prosecution, applying Chinese law and legal standards.
China’s judicial system has a conviction rate around 99%, according to legal observers, and has criticized by human rights advocates and experts over unfair trials, torture and other ill-treatment in detention.
“Where the central authorities decide to exercise jurisdiction in a given case, suspects can be removed to face trial in mainland China. This is not extradition, and the usual judicial controls over extraditions appear not to apply,” the Hong Kong Bar Association said.
“This raises concerns as to whether the rights of the accused to fair trial will be adequately protected or respected.”