A riot police officer points at a woman laying down after being searched during a demonstration in a mall in Hong Kong on July 6, 2020.ISAAC LAWRENCE/AFP/Getty Images
Frank Ching is a Hong Kong-based journalist.
The national security law adopted by China’s National People’s Congress Standing Committee on the morning of June 30 and promulgated in Hong Kong at 11 p.m. 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 of such groups, announced their withdrawal from the organization before it disbanded. Other groups followed suit. Mr. Law has fled abroad, his whereabouts unknown.
The previous week, 80-year-old Anson Chan, a former chief secretary of Hong Kong both before and after the 1997 handover, announced she was stepping back from public life after 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 are likely to be considered “collusion with foreign forces” under the new law.
It has created four offences: collusion, 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 the Committee for Safeguarding National Security, headed by Chief Executive Carrie Lam, 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, Ms. Lam has 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 deals with and which ones it handles itself. For the latter, defendants will be sent to the mainland for trial, apparently without benefit of rendition proceedings.
While Chinese authorities insist such cases will be rare, the law is written in such vague terms – there is no definition of “national security” or “state secrets” – that a large number of people could potentially be caught up in it. Trial on the mainland would mean 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 by such agents 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 affected the economy. Many business people seem to favour the legislation.
The Hong Kong Bar Association voiced concerns that the independence of the judiciary was being undermined. It pointed out that the law removes judicial control over covert surveillance and puts it under the Chief Executive. Also, the association said, having mandatory minimum sentences “strips away judicial discretion in sentencing.”
Chinese authorities have given assurances that the law will only target a 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, it seems inconsistent on that score. Article 42 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, the deputy director of the Hong Kong and Macau Affairs Office of the State Council, said in an unusually candid news conference July 1 that the new law corrects “deviations” and, “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 government’s control over Hong Kong.
It reduces the judiciary’s role in favour of executive authorities, all the 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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