Submitted by Michael Every of Rabobank
The Sword of Damocles
“It’s not the substantive crimes and their definitions that count; it’s the institutions that will investigate, prosecute, and judge them that count. Language matters only if there are institutions that will make it matter. This whole law is about avoiding the involvement of such institutions.”
This is the summary of an analysis of Hong Kong’s new national security law by professor of Chinese law Donald Clarke. China openly states the new legislation is “a Sword of Damocles” hanging over the head of its critics. The law allows life in prison for the crimes of: “terrorism” - including “serious disruption” of transport networks; “collusion” with foreigners – including advocating for action by foreign governments; “secession” – including waving pro-independence flags or banners and or shouting or singing such songs or phrases; and “subversion” – including attacks on state offices and “creating hatred” of the government among the people. It allows Beijing to prosecute complex cases directly – which was what the proposed extradition treaty which sparked Hong Kong’s recent unrest was opposed to; closed trials; trials without jury; the operation of Chinese security agents in Hong Kong – who are immune to the law in the operation of their duties; and “stronger management” of media and foreign NGOs.....MUCH MORE
The law also applies to everyone everywhere in the world. This means if one were to be seen by Beijing as breaking this new legislation in another country and then enter Hong Kong, or transit through it, or even fly in a vehicle registered in Hong Kong, then one would be at risk. Possibly this could even apply to residing in a country with an extradition treaty with Hong Kong (or one day China?). In short, it is a very large, sharp Sword of Damocles.
As such, the same Sword now hangs over markets too. What will the global response be? There has been condemnation from Western governments and steps to allow the emigration of Hong Kongers to the US (where they will be given priority as refugees) and to the UK (where the government appears serious about its pledge to allow in up to 2.9 million people). Even Japan’s newspapers are leading with suggestions that Hong Kongers should be welcomed....
From The China Collection, June 30:
It’s not the substantive crimes and their definitions that count; it’s the institutions that will investigate, prosecute, and judge them that count. Language matters only if there are institutions that will make it matter. This whole law is about avoiding the involvement of such institutions.
Everyone is doing their hot take on the new Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (the “Nat Sec Law” or the “Law”) [Chinese | English], just revealed to the public and made effective today (consultation? schmonsultation!), so why not me?
Two things first:
All right, let’s begin.
- As these are just quick notes, I’m going to comment on the various parts of the law pretty much in the order they appear instead of in a more organized way.
- An important point: I’m not going to talk much about the substantive offenses and their definitions. There’s a reason for that. 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. As the old cliché goes, 欲加之罪何患无辞 (roughly, “if you are determined to convict, you needn’t worry about the lack of grounds”). The key is in the institutions and procedures the law establishes and empowers. Who has power to do what? What are the procedures under which they operate? Who appoints and pays for them? To whom are they responsible? Etc.
Article 2 begins with a weird provision stating that nobody may violate the rules of Article 1 and Article 12 of the Hong Kong Basic Law. But Article 1 and Article 12 of the Basic Law aren’t rules about anything. Article 1 states a proposition, not a rule: “The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China.” How could one “violate” that statement? Article 12 is grammatically the same: ” The Hong Kong Special Administrative Region shall be a local administrative region of the People’s Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People’s Government.” Again, how does one “violate” a proposition?
Article 4 says that Hong Kong should protect rights under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. Given the rest of the law, whether this will happen seems unlikely.
Article 5 states that all persons shall be considered innocent until declared guilty by a judicial organ. As we shall see, this is contradicted by the bail provisions in Article 42.
Article 6 says that protecting the country’s sovereignty, unity, and territorial integrity is the common duty of all the people (renmin 人民) of China. This seems an odd formulation to me. Why not say all the citizens (gongmin 公民) of China? “People” in PRC officialese has a special meaning: it is a subset of the citizenry, and consists of those who are allies of the Communist Party at any given moment. It would be odd to say that reactionaries and counterrevolutionaries, who are not part of the people, get a pass on this duty.
Article 12 calls for the establishment of a Committee for Safeguarding National Security (the “National Security Committee” or the “Committee”), said to be under the supervision of and accountable to the Central People’s Government (the “CPG”), i.e., the State Council and the Premier.
It’s not quite clear how this accountability is to work in practice, since the membership is prescribed by law: the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Commissioner of Police, the head of the department for safeguarding national security of the Hong Kong Police Force established under Article 16 of this Law (the “Nat Sec Head”), the Director of Immigration, the Commissioner of Customs and Excise, and the Director of the Chief Executive’s Office. (To understand where all these fit within Hong Kong’s administrative structure, check out this handy chart. I’ll just note here that they are not all of equal rank. The Nat Sec Head, for example, is under the Commissioner of Police, who is under the Secretary for Security, who is under the Chief Secretary for Administration.) The Committee is to be chaired by the Chief Executive.....MUCH MORE
