By Jerome A. Cohen
As the Standing Committee of China’s National People’s Congress (NPCSC) begins this week’s three-day session, there has been significant commentary on the fate of Hong Kong and the impact of the anticipated new National Security Law. This Chinese language article from The Stand News points out what one or two journalists had already noted – that there has been a significant change in the language regarding foreign and external activity between the May 28th National People’s Congress Decision, which focused on punishment of foreign and external forces that interfere in Hong Kong, and the draft National Security Law that was just submitted for consideration by the NPCSC. The draft law reportedly focuses instead on those, presumably in Hong Kong, who “collude with” interfering foreign or external forces.
During the three-week interval, someone in the leadership or the drafting group saw the need to alter the scope and emphasis of this provision. Perhaps foreign criticisms and fears of prosecution played a role here. More likely, as Professor FU Hualing of Hong Kong University Law School reportedly has said, this change was made simply to make the forthcoming law compatible with the existing provisions of the PRC national criminal law. Nevertheless, when journalists today asked the NPC staff legal expert who met the press about the significance of this change, he cautiously declined to answer and said that we will have to await the text of the actual statute in order to know the answer.
Use of the term “external” (境外 jìngwài) as an alternative to “foreign” is undoubtedly designed to embrace the activities of people from Taiwan and PRC nationals acting outside China. The Decision had stated “foreign and (和 hé) external forces,” which might technically have been misconstrued to mean they had to be in combination in order to be punishable. The draft cleans this up by stating “or” (或 huò) instead of “and.” One key question, of course, will be: what constitutes “collusion”? A second will be: what specific activities are to be covered by the ban on collusion?
It will be interesting, to say the least, to see whether the draft will be made available for public consultation and comment at the session’s close. Many observers suspect there will be a special meeting of the NPCSC in July to enact the NSL. In the interim, the PRC should benefit from a public consultation in many ways. Informed controversy will be more beneficial than continuing controversy based on progressive leaks and uninformed and inconsistent speculation.