Hong Kong national security law: New institutions show China’s true intent

New law devotes a great deal of attention to setting up special institutions and procedures for handling cases deemed to involve national security
Assurances over constraints on these institutions are weakened by central government’s treatment of Gui Minhai, Pu Zhiqiang and other political enemies

Donald Clarke

Published: 9:00am, 17 Jul 2020

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“I don't care who does the electing, so long as I get to do the nominating.” So said Boss Tweed, head of 19th century New York’s infamous Tammany Hall political machine. By the same token, it matters less who does the legislating or what they legislate than who does the prosecuting and judging.

That was the point of a recent blog post of mine about Hong Kong’s national security law that attracted the attention of Ronny Tong in an op-ed in these pages. Regrettably, in the only part of my post Mr Tong quoted, he managed to obscure this point by omitting critical material.

The relevant part of the quote in full, with the omitted material italicised, is: “It’s the institutions and the processes 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.”

Thus, Mr Tong’s question – “So what institutions are the professor saying had been ‘avoided’ by the law?” – is easily answered: institutions that will make language matter. Here is what I mean.

While the national security law sets out various offences – subversion, terrorism and the like – the section on substantive crimes and punishment takes up less than a third of the law. What does the rest of the law do? It devotes a great deal of attention to the critical question of who gets to decide. It sets up special institutions and procedures for handling cases deemed by the authorities to constitute national security cases.

02:45

Hong Kong hotel becomes home to Beijing’s new national security office in the city

In effect, the security law sets up two separate tracks for handling such cases, either of which can be used. The first track consists of Hong Kong institutions staffed largely by Hong Kong people. However, at each stage of the case – investigation, prosecution and adjudication – the law deems the ordinary process of law in Hong Kong to be inadequate and sets up special bodies whose staffing is heavily influenced by mainland authorities.

For investigating cases, the law sets up a special subunit of the police force, the head of which is appointed not by their immediate superior but directly by the chief executive after consultation with the national security office, a wholly mainland body.

For prosecutions, the law sets up a special division within the Department of Justice, the head and all prosecutors of which must be approved by the mainland’s national security office.

Finally, the judges who hear cases must be specially designated by the chief executive. They are kept on a very short leash: their term is only one year, and they can be removed at any time if the chief executive decides that they have said or done something that endangers national security. The justice secretary has the unreviewable discretion to deprive any defendant of the right to a jury trial.

What the national security law makes clear: politics trumps business

The second track operates via the establishment of a special Office for Safeguarding National Security – the national security office. It is staffed by mainland officials appointed by mainland authorities. Among its many functions is the power to assert jurisdiction over any national security case – to take it away from the first track’s authorities – with the approval of Beijing. It can then send defendants to China for prosecution, trial and sentencing in mainland courts according to mainland procedures.

Mr Tong’s op-ed makes no mention of this body, nor of the fact that the security law allows its personnel to roam Hong Kong immune from the jurisdiction of Hong Kong law. His claim that Hong Kong authorities will be in charge of enforcing and adjudicating the law is simply incorrect when so broadly stated. They will not be in charge of any cases the national security office decides to take out of their hands.

Mr Tong assures us that none of this is cause for worry, that language cannot be twisted and nobody will be unjustly prosecuted. The sorry history of China’s criminal prosecutions of the politically disfavoured refutes him.

Gui Minhai, a bookseller in Hong Kong of Swedish citizenship who published materials on the personal lives of senior Communist Party leaders, was kidnapped in Thailand and taken to mainland China. There, the authorities initially accused him of involvement in a traffic accident before moving to “illegal business operations” and finally settling on “illegally providing intelligence overseas”.

Pu Zhiqiang, an activist lawyer, was convicted of “picking quarrels” for three Weibo posts criticising government officials and a pro-government author. The list goes on.

Protesters try to stick photos of Gui Minhai and other missing booksellers during a protest outside the central government’s liaison office in Hong Kong in January 2006. Gui was kidnapped in Thailand and taken to mainland China. Photo: AP

Mr Tong’s assurance that the International Covenant on Civil and Political Rights remains the law in Hong Kong is contradicted not only by the text of the national security law itself – for example, in making denial of bail the general rule instead of the opposite – but more clearly by the police banners explicitly warning the public that mere speech will be deemed a crime.

And it is not just mainland authorities who have a taste for elastic interpretations of criminal statutes: Chief Executive Carrie Lam Cheng Yuet-ngor has warned that if the goal of the recent primary was to deliver a legislative majority for “resisting every policy initiative” of the Hong Kong government, it could constitute the crime of “subverting state power” under the law.

Yet on the basis of a little more than a week’s experience under the security law Mr Tong declares all concerns are unfounded. He says there have been no mass arrests, but there are no mass arrests in mainland China for mocking President Xi Jinping, either. People know better by now. In Hong Kong, libraries are obediently purging their shelves of any books that might displease the authorities.

03:03

Hong Kong publishers resort to self-censorship under new security law

As Mr Tong says, the proof of the pudding is in the eating. We shall see. I first came to Hong Kong in 1977 and have an abiding fondness for the city and its people. Mr Tong attributes criticism of the security law to “Westerners”, relegating Hong Kong citizens to the role of passive objects of control while blaming outsiders – a classic move of authoritarian regimes.

Unlike Mr Tong, the Hong Kong people I know – including mainlanders who treasure what has made Hong Kong great – are deeply concerned. Perhaps we just move in different social circles.

Donald Clarke is a professor at the George Washington University Law School in Washington. He is a member of the Council on Foreign Relations

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