Hong Kong: The impact of China’s National Security Law

July 09, 2020 06:00
Photo: Reuters

The national security law adopted by China’s National People’s Congress Standing Committee in the morning of June 30 and promulgated in Hong Kong that night had an immediate effect, with localist groups disbanding that same day.

Joshua Wong, Nathan Law and Agnes Chow, founders of Demosisto, the most prominent such group, announced their withdrawal from the party before the group announced its disbandment. Other groups followed suit. Law has fled abroad, his whereabouts unknown.

The previous week, 80-year-old Anson Chan, former chief secretary both before and after the 1997 handover, announced that she was stepping back from public life following the death of her daughter. She had been denounced in Chinese state media for her overseas activities. While the law is not retroactive, such activities in future are likely to be considered “collusion with foreign forces” under the national security law.

The new law created four offences. Besides collusion, they include secession, subversion of state power and terrorism. The maximum sentence for serious offences is life in prison.

The law creates a network of institutions involving the police, prosecutors and judges, all susceptible to Beijing’s influence. At the top is a Committee for Safeguarding National Security, headed by the Chief Executive, with a mainland-appointed National Security Adviser. Decisions made by the Committee are not subject to judicial review.

Within the police force, there is now a department for safeguarding national security. Its head is appointed by the Chief Executive but, according to the law, Carrie Lam had to “seek in writing the opinion” of the Office for Safeguarding National Security, a new mainland institution created by the law.

This office decides which cases Hong Kong would deal with and which ones it would handle itself. For those cases, defendants will be sent to the mainland for trial, apparently without benefit of rendition proceedings.

While the Chinese authorities insist that such cases will be rare, the law is written in such vague terms – there is no definition of “national security” or of “state secrets” – that a large number of people could potentially be caught. Trial on the mainland would mean that China’s criminal procedure law would apply, without Hong Kong’s safeguards.

Most concerning is that agents of the office are not accountable in Hong Kong.

According to the law, “acts performed in the course of duty” by staff of the office “shall not be subject to the jurisdiction of the Hong Kong Special Administrative Region.” Moreover, such staff “shall not be subject to inspection, search or detention by law enforcement officers of the region.”

Thus, it seems, such agents constitute a secret police force above the law. It would be pointless for anyone who is threatened or even physically harmed to appeal to the police for help because they, too, would be helpless.

This law was drafted largely as a result of the 2019 riots, which seriously impacted the economy. Many business people seem to favor the law.

The Hong Kong Bar Association voiced concern that independence of the judiciary was being undermined. It pointed out that the law removes the current judicial control over covert surveillance and puts that under the chief executive. Also, the association said, mandatory minimum sentences “strips away judicial discretion in sentencing.”

The Chinese authorities have given assurances that the law will only target a small handful of people. The law itself contains a statement on the presumption of innocence, saying “a person is presumed innocent until convicted by a judicial body.”

However, the law seems inconsistent on that score. Article 42, which deals with bail, says, “No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.”

That sounds like a presumption of guilt.

Zhang Xiaoming, deputy director of the Hong Kong and Macao Affairs Office of the State Council, said in an unusually candid press conference July 1 that the new law corrects “deviations” and, he said, “To put it more succinctly, it is to move closer to ‘one country’.”

Thus the law, while continuing to use the language of “one country, two systems,” is designed to strengthen the Chinese government’s control over Hong Kong.

It reduces the judiciary’s role in favor of the executive authorities while placing those authorities more tightly under central government control. The new national security office joins the central government’s Liaison Office, the Foreign Ministry Commission and the People’s Liberation Army Garrison in overseeing Hong Kong which, in theory, continues to enjoy “a high degree of autonomy.”

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Frank Ching opened The Wall Street Journal’s Bureau in China in 1979. He is now a Hong Kong-based writer on Chinese affairs.