The new national security law for Hong Kong: “Do what we say and you will be fine and even happy.”

By Jerome A. Cohen 

Here’s an RTHK interview with my former student Professor Albert Chen—who is a member of the Basic Law Committee—about the new national security law, 'Security law is like a new social contract'. 

As every law professor should know, a contract is one voluntarily entered into by the parties to the contract. Perhaps earlier one might have optimistically said that, despite the unequal bargaining powers of the parties, the Basic Law established a social contract since, over a very long negotiating process, the UK and even representatives of the people of Hong Kong took part in the different stages of the negotiating process. But the new national security law is in no possible sense a contract. It is a secretly drafted, extremely vague, non-negotiable political and social diktat that has immediately shrunk freedoms in Hong Kong.

The new “rule of law,” enforced by Mainland police and their local minions, is “Do what we say and you will be fine and even happy.” People will gradually lose even their freedom to be silent. Sadly, the time for benign optimism has plainly passed.  

My quick reading of the troubling national security law for Hong Kong

By Jerome A. Cohen

I have been asked by journalists about the new national security law (NSL) for Hong Kong (Chinese text here; Xinhua’s English translation here). Here are some quick comments that highlight some of the key points to be made about this new law, which bristles with legal issues. Zhang Xiaoming’s ambiguous but threatening remarks just quoted by Reuters make what is written below, written before Zhang’s latest remarks, even more relevant, beginning with the paragraph numbered 2.

The real impetus for the NSL is not the need to prohibit the offenses proscribed, although some new ones, especially relating to “foreign and external” influence, have been added to the already largely adequate Hong Kong criminal laws. 

The major changes can be summarized under four categories:

1. Institutional innovation establishing Central security and judicial controls over anything called national security and integrating Hong Kong Government firmly under control of the Central security agencies

2. Jurisdictional expansion designed to give Central security agencies, prosecutors and courts control of punishment of those deemed the most serious offenders AND the discretion to decide which of the most serious should be tried in Hong Kong but under the new system of Hong Kong “justice” for national security cases. This means that some suspects will be forced to go to the Mainland for detention, prosecution, trial and sentencing by Mainland authorities skilled in dealing with national security cases, or tried in Hong Kong under the imported Mainland system! (No reference to the nasty, inflammatory concept of “rendition/extradition” but how do the suspects shipped to the Mainland get there?)

3. This leads to the third category — Procedural innovations for suspects including not only residents but also people outside Hong Kong charged with acts abroad. For example, the new Mainland Office in Hong Kong can question, investigate, detain and deny bail to people according to Mainland practice, including Invitations to tea and no privilege against self-incrimination when police ask questions. If as prescribed the Office decides to prosecute you under Mainland processes either in Hong Kong or the Mainland, under the PRC Criminal Procedure Law, as a national security case suspect you can be locked up for as long as 6 months incommunicado, which subjects you, illegally of course, to torture and coerced confession, legally to no access to counsel or family or friends, before the police decide whether to process you for a crime according to the ordinary procedure. If the police decide instead to process you under the new Hong Kong special procedure, you get specially selected Hong Kong prosecutors and judges. And no jury trial but three judges. If selected for trial by Mainland processes, either in Hong Kong or in the Mainland, you get the usual Mainland national security processes, such as they are.

4. The fourth category is the electoral consequences of the new law. If you fail to endorse it, you can be removed from existing public offices — Legco or District Council — or disqualified from running for those offices, etc.

Much depends on the Law’s interpretation by the National People’s Congress Standing Committee (NPCSC), which has exclusive power to interpret. How should those special Hong Kong judges allowed to deal with these cases obtain any necessary NPCSC interpretation? Normally a Hong Kong court could itself interpret the Law or even invalidate a provision subject to later NPCSC reversal. But now only the NPCSC can take the first and last shot at its meaning.

There’s also the important question of how “state secrets” in many places of the Law will be interpreted. Based on the Mainland’s practice, “state secrets” are whatever the police choose to define them as in the case at hand and, despite relevant legislation, it is impossible to seriously challenge the designation in discussions with prosecutors before or after indictment or in front of judges during trial and appellate proceedings. Usually defense lawyers themselves simply have to accept the designation and certainly cannot seek help from experts or others since they are not allowed to reveal to others any information pertaining to these secret, closed trials. Years ago a defense lawyer I had recommended to a Chinese defendant in an alleged “State secrets” case could not risk discussing the proceedings with me.

As to the tricky Article 38 (“This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.”), some nations in principle claim the right to punish foreigners as well as their own nationals for acts abroad that have serious adverse consequences at home or against their nationals abroad. Others purport only to ban the adverse acts of their own nationals abroad. There will be a huge reaction to any PRC claim to punish foreigners for adverse acts committed abroad that are not proved to have serious consequences at home or against the nationals of China abroad. The international community is likely to reject any attempt at such a claim as another PRC violation of public international law. In interpreting Art 38, as it will have to, the NPCSC will undoubtedly look to the relevant provision of China’s criminal law and say that foreigners may be punished if their acts have a certain level of seriousness, such as that of similar offenses in China that call for at least three years of punishment, AND IF those acts are also punishable in their own country. Thus, Americans, for example, can safely condemn the NSL while in the US without being subject to PRC conviction for a NSL violation since such condemnation is not punishable in the US, being an act of free speech.

To me, more serious is the range of problems arising from the inevitable need to interpret the collusion with foreign forces provision. These are not merely interesting theoretical questions but of the utmost practical significance to foreign and Taiwan scholars who cooperate with HK academics, lawyers, NGOs and democratic political figures. Do I dare to host Martin Lee, Jimmy Lai, Dennis Kwok or Anson Chan (if she returns to the scene) again at the Council on Foreign Relations in New York? The legal danger will be theirs; I will probably be mentioned only as an unindicted co-conspirator!

All in all, this is a Takeover of HK, not, as billed, a “second Handover”.

For a checklist and analysis of the issues, the long piece I had in The Diplomat a couple of weeks ago may be of interest, since many issues discussed in that piece are rising daily.

ASEAN Takes a Subtle Stance Against China’s Maritime Claims

By Jerome A. Cohen

On Saturday, ASEAN member states took a subtle but important step forward toward asserting the all-encompassing authority of the UN Convention on the Law of the Sea (UNCLOS) over PRC claims. UNCLOS, Beijing argues, despite the 2016 major contrary decision of the Philippine arbitration tribunal convened under UNCLOS that the PRC spurned, still leaves open the possibility of legitimate PRC claims to “historic rights” and a preemptive “nine-dash Line” in the South China Sea. Yet, without specific reference to the unanimous Philippine arbitration decision interpreting UNCLOS, which would have plainly infuriated the PRC, this new ASEAN statement, crafted by Vietnam but apparently acquiesced in by all ASEAN members, explicitly confirms that “UNCLOS sets out the legal framework within which all activities in the oceans and seas must be carried out”.

This cautious, collective “diplomatic speak” can be read to mean that any PRC maritime activities in defiance of the authoritative Philippine arbitration award interpreting UNCLOS are illegitimate. Of course, the PRC claims that the tribunal’s expert arbitrators, among the world’s leading law of the sea specialists, misunderstood UNCLOS and that a proper reading would sustain the PRC’s position.

This is what makes fascinating the recent signals that Vietnam may finally pursue its own maritime legal claims against the PRC by following the Philippine example and initiating its own claims against the PRC via UNCLOS arbitration arrangements. Curiously, the PRC has recently reportedly hinted at a possible receptiveness to Vietnam’s suggestion that Hanoi and Beijing agree to invoke third party legal decision-making to settle their maritime issues, which would be a momentous and positive step toward international law for Beijing. But don’t hold your breath waiting for Beijing’s agreement to any type of impartial, independent international maritime arbitration or adjudication. Nevertheless, at least some reconsideration of the wisdom of PRC refusal to take part in the Philippine arbitration may be under way in Beijing. 

Vietnam’s initiation of arbitration would itself be an exciting development, even more so than the Philippines’ stunning 2013 decision to try to take the PRC “to court”. A second authoritative arbitration award invalidating the PRC position would be a grievous blow to Beijing’s continuing legal efforts. For years I have been urging Vietnam to take this legal plunge despite the countervailing political and economic pressures that have inhibited Hanoi from going to law against the powerful neighbor on its borders.  International law is the last resort of the weak against the powerful. Yet invoking it can be risky!

More About Canada, China, and Arbitrary Detention

By Jerome A. Cohen

As I have written here before, in the Gao Zhan espionage case in 2001, the US State Dept and the PRC MOFA quietly agreed that she would be released on ostensible medical grounds but only after first being convicted and sentenced to 10 years in prison. Her trial followed shortly afterward, and she was released 48 hours after sentencing. Because of the added Meng extradition element in the current Canadian dispute with China, the Gao Zhan case is not analogous to that of the two Michaels but its resolution is relevant. Although Gao was not yet an American citizen, she was on the cusp, and she had tremendous public support from the US academic community because she was a US-trained and US-based scholar of Chinese society engaged in fieldwork in China. Her detention and prosecution seemed to threaten all serious foreign scholars working in China. Only later was it discovered that she had been secretly working for Taiwan intelligence - as well as also earning a living by illegally exporting to the PRC American high-tech electronic equipment that was banned from export under the US Trading with the Enemy Act. This was no simple multitasking but “walking on two legs” following Mao’s famous maxim. 

Although I believe, with Trudeau, that Canada should not yield to PRC hostage diplomacy, if it should do so eventually, it should certainly not do so on the basis of the PRC first convicting the two Michaels of the crime charged. They could instead be released sequentially on one medical excuse or other prior to trial. The PRC might try to negotiate their convictions for respective minor offenses as a face-saving measure in a pathetic attempt to justify their long, barbaric detentions. Years ago, during the Jiang Zemin era, when at trial a courageous defense lawyer demonstrated that the PRC could not plausibly convict a Chinese employee of the NYTimes Beijing Bureau of leaking state secrets to a foreign organization, in order to justify the years of his pre-trial detention the Beijing High Court convicted him of a much lesser, unrelated offense that had arisen from what was really more of a civil dispute than a criminal matter. 政治掛帥, zhengzhi guashuai! Politics is always in command of the Chinese courts, as Xi Jinping and his minions repeatedly advocate.

Arbitrary Detention, Canada and the National Security Law for Hong Kong

By Jerome A. Cohen

This recent article details the disgraceful PRC arbitrary detention of the two Michaels and the understandable strains this has placed on domestic Canadian politics as well as Ottawa’s relations with China. In a recent letter, a number of prominent Canadians urged the prime minister to end Meng Wanzhou’s extradition process in exchange for Michael Kovrig’s and Michael Spavor’s release. Despite the emotional pressure that all of us feel in sympathy with the tragic, unfair plight of the Michaels, Prime Minister Trudeau’s decision not to yield to hostage diplomacy is undoubtedly the right one from the viewpoint of Canadian law, values and government, as well as Canada’s international relations generally and its continuing contributions to public international law. An equally prominent group of Canadians recognized this in an answering second letter.

The right course for the authors of both letters and for all who want to end hostage diplomacy by powerful dictatorial regimes is to join forces and press all democratic governments to denounce and excoriate the PRC’s gross misconduct in every available forum. The current public effort of the UN Human Rights Special Procedures experts to condemn China’s forthcoming National Security Law for Hong Kong is only one excellent precedent to emulate. Although Beijing’s veto precludes UN Security Council action, and Beijing’s influence over the UN General Assembly and even the UN Human Rights Council still staves off significant actions by those institutions, the impressive large group of politically independent UN human rights experts who have courageously signed this just-released statement have taken a very important step that deserves the fullest world appreciation. 

Indeed, there is a link between these two outrageous situations. The fate of the two Michaels demonstrates how arbitrarily the PRC Party-controlled apparatus can be manipulated in the name of “national security.” Kovrig may indeed be deemed the unwitting vanguard of Hong Kong-based political experts to be sacrificed in the PRC in the name of China’s “national security.”

Confusion and Contradictions Surround the National Security Law

By Jerome A. Cohen

As leaks continue to seep out from various official and semi-official sources about the contents of the forthcoming National Security Law, some of them muddy the waters even more. This just-released SCMP story is a classic case of confusion. In quoting several speakers, it mixes up several questions: 1) By what process will the HK Chief Executive be permitted to appoint the panel of NSL judges? 2) Will it be possible to include judges holding foreign nationality in the panel to be appointed? Judges with HK and foreign ties? 3) To what extent will there be cases under the NSL that are deemed to be outside the jurisdiction of HK courts and only subject to the jurisdiction of the central authorities?

I could not understand the remarks attributed to Zhang Yong, Vice Chairman of the Legislative Affairs Commission of the NPCSC, who seemed to counter concerns about judicial independence with opaque references to judicial jurisdiction. Perhaps the reporters garbled the text of his speech, which I hope to see soon.

Each Day Reveals New Problems with the Imminent National Security Law

By Jerome A. Cohen

This one-day marathon charade of “informal public consultations” for only select supporters of the forthcoming National Security Law would be a laughable farce, as a good farce should be, were the subject not so serious.

The day’s most significant reported addition to what has already been reported is the amazing statement attributed to law professor Priscilla Leung, a HK lawmaker and member of the Basic Law Committee, that the only people who will be sent to the Mainland for prosecution under the NSL will be those who advocate independence for Tibet, Xinjiang and Taiwan! Can this be an accurate account of what she actually said?

Will it now be prohibited for all persons in HK, including foreigners, to express support for independence for Taiwan and the two “autonomous” regions whose long-suffering fate may point the way to HK’s future autonomy? Will people be prosecuted in the Mainland for expressing such support outside China as well as in HK? And what about expressing support for HK’s own independence or genuine autonomy? Will people who voice such sentiments NOT be forcibly transported to the Mainland for trial? That seems very unlikely and inconsistent with the  slogan that best summarizes the new regime - “Equal Injustice Under Law”! 

Furthermore, each day results in more in the series of piecemeal revelations to which the public is being treated. Deputy director of the NPCSC Legal Work Committee, Zhang Yong, recently contradicted Carrie Lam’s statement that there will not be a nationality restriction on judges appointed in national security cases. Apparently, the leadership believes that a slow unveiling of the law is a preferred strategy for minimizing adverse popular reactions – gradually ease the people and the world into the new era rather than spring the whole repressive apparatus on them “cold turkey.” The full truth will continue to be progressively revealed once the new NSL is applied. After the law’s promulgation, the key question will be: will Xi Jinping think it more effective immediately to launch the stunning massive repression that former ICAC deputy commissioner Tony Kwok advocates – “Operation Thunderbolt” - or should the campaign begin slowly and be geared to the strength of the popular pushback?

Judicial Appointments Under the National Security Law

By Jerome A. Cohen

Here is another interesting development. As a result of criticisms from highly respected sources in Hong Kong and elsewhere – NOT Tony Kwok or Grenville Cross, some flesh has been put on how the Chief Executive will exercise the power to appoint judges for security cases.

The system being articulated may not in itself be a bad one or an unusual one if the question of how to appoint judges is viewed in the abstract and in comparative terms. But in the context of existing HK reality, one has to ask, as many still do: why is this new appointment system being introduced? Why is it limited to security cases? HK already has a good system for selecting judges for ALL cases. Who is being excluded from the HK judiciary for consideration of these special cases? Foreign judges? Judges considered too sympathetic to democracy? Why?

Moreover, this whole desirable flap over judicial independence obscures the even more serious problem that will certainly persist. That problem arises from the breadth of the definitions of the offenses to be proscribed in the National Security Law and the broad discretion this will give HK government prosecutors to bring charges. For example, the next time Martin Lee and Jimmy Lai come to New York, if they again speak at the Council on Foreign Relations as they recently did, will this lead to their prosecution for “colluding with foreigners’” for saying things that the HK government and its willing Secretary for Justice think should be regarded as “against the interests of HK”?

An independent judge will look at the breadth of the statute and find that the words involved are not self-defining. The judge will have to decide whether the interpretation put upon those words by the prosecution, so broad as to prohibit the speeches involved, is a proper one or whether, in the interests of freedom of speech and other constitutional considerations, a narrower interpretation protecting the freedoms in question is to be preferred. Hong Kong judges have been capable of taking on this task of interpretation until now.

But the NSL now clearly commands that all future interpretations of this nature must be made NOT by HK judges but exclusively by the NPCSC. This is the core problem that focus on judicial appointments alone obscures! Yet we are not allowed to learn – until too late, when the law emerges - how the new offenses are defined, if at all, in the law. Amazingly, even Carrie Lam admits that, even at this late date, she, Hong Kong’s stoutest defender of the draft, has not seen all of it! And in the absence of release of the draft text, all the symposiums of limited, selected audiences currently being convened by PRC agencies are a meaningless, even deceptive, substitute for the usual genuine public consultation that the draft deserves but has been denied.

Grenville Cross Ignores the National Security Law’s Dangerous Effects

By Jerome A. Cohen

Here is todays’s preposterous and frightening Xinhua story about the National Security Law. It relies, as China Daily and other PRC propaganda vehicles have, on former Hong Kong Director of Public Prosecutions, Grenville Cross, who continues to wax enthusiastic about the very broad potential reach of the forthcoming NSL, which he sees as an “antidote” and a “minimalist” approach.  

While justifying the law in terms of the need to put down violence and terrorism, Cross nevertheless suggests interpreting the criminalization of collusion with foreign or external forces to include “asking external forces to harm the interests of Hong Kong officials or agencies, or to otherwise hurt the interests of Hong Kong.” So, if Martin Lee, Jimmy Lai, Dennis Kwok and others, even including Anson Chan, again criticize Carrie Lam or her subordinates while in New York or Washington DC, they can soon be sent to prison for up to 10 years. Moreover, they will not even have to criticize any HK officials or agencies. It will be enough for them to say anything that the successors to Mr. Cross may claim has “hurt the interests of HK,” even if many in and out of Hong Kong believe that what the defendants have said actually supports the true interests of Hong Kong.

How can Cross keep a straight face as he repeats that the NSL’s arrangement for the Chief Executive to appoint the judges who will try the accusations made by his government does not affect the SAR’s judicial independence? Certainly the HK Bar Association dismisses this as nonsense, as does Andrew Li, the able first Chief Justice of HK, now retired, who is quoted, NOT in Xinhua or China Daily but in the June 22 SCMP, as saying that giving the chief executive the power to select the judges would be “detrimental to the independence of the judiciary.”

Thoughts on Human Rights Lawyer Wang Quanzhang’s Interview

By Jerome A. Cohen

Human rights lawyer Wang Quanzhang

Here is the latest report on the famous, now released from prison, human rights lawyer Wang Quanzhang. Its description of the torture and many other abuses he suffered while being convicted on national security grounds in China should be of interest to all in Hong Kong who might fall into the category of “the very small number” of people whose prosecutions for violations of the forthcoming National Security Law might subject them to central authorities.

The report is a curiosity in several respects. Why has the PRC allowed this first “face to face” media interview with Wang as well as his earlier interviews with overseas media? This is not normal “non-release release” for PRC ex-political prisoners.

Why does the interview feature only the torture and other charges that Wang has already made known but says nothing about his earlier vow to pursue justice and try to review his case in PRC courts? Has Wang made any progress in this notoriously uphill struggle? How has he tried to proceed? Is he refusing to talk to foreign media about this current effort in order to avoid possibly prejudicing it because of adverse PRC official reactions?

The translation of the interview seems a bit odd in places, especially to call the abusive police, prosecutorial and judicial measures taken against Wang “sloppy.” I wonder what the Chinese term Wang used was.

Important Information Withheld in the National Security Law Draft

By Jerome A. Cohen

Here, in an amazingly short time, is a useful, quick analysis by the astute NPC Observer of the summary of the draft National Security Law distributed following the end of the NPCSC’s June 18-20 session. It notes the failure of the summary to enlighten us about the definitions of the four major offenses, and the vagueness surrounding the circumstances in which and methods by which the Central Government will exercise jurisdiction over the “very few” cases that cannot be left to Hong Kong. There is not a word about extradition, there is no clear light about jury trials and care NOT to use the anticipated term “special court” to describe arrangements for what is in effect a special court, no mention of the privilege against self-incrimination, no details about whether the Chief Executive will pick judges for each case or only for the special panel from which they will be selected, no mention of whether foreign judges will be excluded from the security trials, and so many other judicial issues skirted, including how courts are to receive interpretations of the NPCSC in cases that raise issues of statutory interpretation or constitutional questions. Also still a mystery is whether the public will be given a formal chance to submit written comments on this fragmentary material or if it will be left to the restricted channels currently existing for registering popular reactions. No referendum, school protests, boycotts, strikes, or public demonstrations; only limited access to government circles and resort to the media, civic and academic meetings, etc. Will opposition to the draft NSL today lead to trouble with the new system tomorrow? We are told that no punishments will be imposed for conduct committed before it was proscribed by law. That major judicial principle may still be observed when a security court makes its decision but surely it will not prevent the new security police from initiating the investigations that will lead to prosecutions ostensibly limited to NSL-proscribed conduct. And, in sentencing, judges often look to the convicted person’s past behavior, not merely to previous criminal convictions.

Analysis of the Proposed Hong Kong National Security Law

By Jerome A. Cohen 

Here are some of my preliminary comments on the just-released Xinhua summary of the status of the proposed National Security Law. So far nothing has been released about whether there will be a consultation and comment period, even an abbreviated one, before the next NPCSC session. Nor has a date been announced for that next session, which may well be a special one in order to rush things through. These signs, like the failure to release the full text of the draft – 66 articles, suggest continuing uncertainty and disagreement in the leadership about how to handle the many delicate and difficult issues involved. Nothing has been said yet about sensitive questions such as extradition to the Mainland of the “very few” accused to be subjected to central justice. There are also many issues related to investigation in HK – invitations to tea, unrestrained surveillance in person and electronically, no privilege against self-incrimination during investigation, etc. How are the NSL crimes being defined? By what criteria will the CE select judges and why is this special system necessary? Although the Summary gives us some “eye candy” about human rights, the protections offered by Hong Kong law and the ICCPR, the very provisions in the draft NSL would appear to violate those protections. The Handover has clearly become the Takeover.

How Will the Prosecutions Against Michael Kovrig and Michael Spavor Unfold?

By Jerome A. Cohen 

Michael Spavor (L) and Michael Kovrig

After 557 consecutive days of incommunicado interrogation and incarceration, China has finally indicted two Canadians, Michael Kovrig and Michael Spavor, with varieties of espionage. The Globe and Mail has a good article on these terrible cases. The SCMP has also published an article on the charges. Both articles raise more questions than the PRC is prepared to answer, and these questions relate to today’s focus on the content of the forthcoming National Security Law for Hong Kong, especially the hot issue of foreign and external “collusion.”

One basic question is the extent to which the cases of the “two Michaels” are linked. Last year, China’s powerful Central Party Political-Legal Commission claimed that Spavor, the businessman, had provided intelligence to Kovrig, the International Crisis Group researcher. That might well be plausible since Kovrig would obviously want to be in contact with all sorts of people, particularly ones who knew a lot about North Korea and its relations with China. Yet their relationship does not appear to be an important part of either case, so far as we can tell. The two cases do not appear to be legally linked at this point. They are not being prosecuted together, the charges seem to be somewhat distinct so far as news accounts discern, and they are not even being prosecuted in the same city. Intriguingly, Spovar may be charged with sending secrets to the DPRK as well as Canada, which may be why his case is now based near the Korean border.

Yet it is obvious from the circumstances of their common connection to Sino-Canadian relations and the US attempt to extradite from Canada Huawei’s CFO, Ms. Meng, as well as from some PRC diplomatic statements and publicity, that the cases are politically linked to each other and to the extradition case. This is not simply the usual PRC practice of illegal arbitrary detention that violates both Chinese and international law but it is also a more extraordinary example of international “hostage diplomacy.” 

Of course, the two cases are both being legally processed in a similarly unfair fashion. Now that indictments have been handed down, the defendants are likely to finally have Party-approved lawyers appointed for them, not chosen by them. Until now, they reportedly have been denied the right to see any lawyer. Until the coronavirus pandemic, they did have monthly very brief visits from a Canadian consular official, but these have inevitably been of limited assistance since PRC rules ridiculously do not allow any discussion of the case that is the cause of the visit!

I strongly disagree with the statement by Gordon Houlden, a former Canadian diplomat quoted in the Globe and Mail article, to the effect that indictment makes it more difficult, but not impossible, for the Chinese leadership to intervene in the judicial process. In defense of the reputations of both the Party and the courts, I can confirm, from many personal experiences assisting in similar human rights cases in China, that the power of the Party over the courts never diminishes, even in the final stages of death penalty cases, as indeed the current Schellenberg case illustrates. In the infamous Gao Zhan case, for another example, the US State Department and the PRC Foreign Ministry quietly agreed that, immediately after her sentence to 10 years in prison, she would be released, allegedly for medical treatment in the US. Her husband and I waited an anxious 48 hours before the deal was carried out.

Schellenberg’s Chinese lawyer, Zhang Dongshuo, also quoted by the Globe and Mail, offers a more accurate version of how the two Canadian cases will secretly unfold, predicting that it “won’t proceed openly, there will be no observers and the verdict and case information won’t be made public.” Actually the verdict, in the sense of the court’s sentence, will very likely be made public, but the court’s opinion will be withheld, in order to deny observers insight into the judicial process and the facts. The future timelines of the cases and the fates of the two ill-fated hostages are still incredibly uncertain. Evidently, the current PRC leadership has no shame when it comes to human rights and international law.

The Changing Text of the Forthcoming National Security Law

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.

Should the UN Increase Its Involvement in Hong Kong?

By Jerome A. Cohen

This is an excellent essay by Professor Yanghee Lee, former UN special rapporteur on Human Rights in Myanmar and former chair of the UN Committee on the Rights of the Child, on the dire situation in Hong Kong and the human rights violations that the new National Security Law may bring. It is wonderful to hear from a Korean expert on Hong Kong, especially one who has had such important relevant experience and has come up with a constructive proposal for trying to cope with the increasingly explosive situation. 

In the article, Professor Lee suggests that the United Nations could create either a special rapporteur or special envoy for human rights in Hong Kong. It would be excellent if the UN were to make some direct effort to improve the situation. The PRC claims that Hong Kong’s unrest is a matter of national security. However, it is also obviously a matter of international security, although the PRC vigorously resists this truth. Unfortunately, a PRC veto would frustrate any effort to invoke the concern of the UN Security Council. Eventually, the UN Working Group on Arbitrary Detention will confirm the PRC’s anticipated violations of the human rights of people victimized under the forthcoming NSL. But that plainly will be too little and too late, as it so often has been. What to do now?

Although a special rapporteur for HK would be splendid, Professor Lee, herself a former special rapporteur, maintains that this appointment would have to be approved by the UN Human Rights Council and may run into obstacles. Also, she does not explicitly discuss the politics of approval at a time when the US has withdrawn from the HRC, and the PRC wields prominent influence over the Council. Certainly, an attempt should be made to obtain HRC approval, if only to embarrass the PRC and many of the other oppressive governments that take part in the HRC.

The special envoy possibility is one that is rarely discussed outside expert circles and, although perhaps less immediately effective in informing public opinion, is surely worth trying. Here, Professor Lee points out, approval must come from the UN Secretary General. Of course, the PRC has a good deal of influence in the Secretary General’s Office, but so too does the US as well as the other liberal democracies. It would be good to hear the appraisal of political observers about the current constellation of pressures in that office. It is sobering for outsiders to note the ongoing international struggle for influence over the much-criticized WHO Secretary General, who is about to deliver a commencement speech at Tsinghua University in Beijing.

Is there no possibility that the Office of the UN High Commissioner for Human Rights can be of assistance? Under some administrators it has played an important and encouraging role. 

The UN is an area where an immediate Western response might be made without awaiting the public appearance of the draft National Security Law, if a draft is actually going to appear before the NSL is foisted upon HK’s fearful and divided population and the many foreigners who interact with it.  

Will China’s New National Security Law Lock Down Hong Kong?

By Jerome A. Cohen

I have just published a piece in The Diplomat, Will China’s New National Security Law Be the “Anti-Virus” Software that Locks Down Hong Kong?

Although national officials confidently liken the forthcoming law to “an anti-virus software” that will guarantee a new era for the SAR, every statement has created greater doubt. One critic dubbed the decision the “mother of all bombshells,” and there have already been grave concerns about the NSL’s legitimacy. The article analyzes the legislative, judicial, and law enforcement implications of this unfolding situation.

Further confusion around Hong Kong’s forthcoming National Security Law

By Jerome A. Cohen

On Monday, in a speech at a forum in Shenzhen, Deng Zhonghua, another deputy director of the Hong Kong and Macau Affairs Office (HKMAO) designated to speak out about the forthcoming legislation, claimed that the new law will give the Central Chinese Government itself jurisdiction to prosecute “a very small minority of cases involving very special circumstances” and that local HK authorities would be responsible for all other cases. This was a startling assertion of central authority that was quietly dropped from the official account of Deng’s speech. It seems that every confident statement issued by HKMAO officials about the forthcoming law’s content has only created more doubt, confusion, misunderstanding, fear and opposition. 

Following Deng’s statement and the consternation it created, Hong Kong’s Chief Executive, Carrie Lam, released a video reaffirming the relationship between Hong Kong and China. She restated for the umpteenth time the obvious fact that “Hong Kong is an inalienable part of the People’s Republic of China.”  She too emphasized that the new law “will only target an extremely small minority of illegal and criminal acts and activities,” but she failed to mention a key question - whether all such prosecutions would  be conducted in Hong Kong or whether the most serious would be prosecuted in the Mainland, i.e., not under the protections of Hong Kong’s common law constitutional system and the International Covenant on Civil and Political Rights.

Why is she releasing this statement now? Is it to counteract the confusing and damaging impact of Deng’s speech? Lam’s remarks – so general and abstract – simply rehash the standard argument and assurance. Has she even read the draft text of the law? Where is this draft text? It has not yet been listed for discussion at this week’s NPCSC session. Why not? Lam doesn’t seem to have a clue about the legal complexities and concerns stoked by all the “truth squads” that seem to be staggering under the weight of preparing the public for issuance of the draft. Remember what Mao said at the worst time of the GPCR? “All is chaos under Heaven. The situation is excellent.” 

Furthermore, although the draft text isn’t, at least yet, on the agenda for the current NPCSC session, its accelerated drafting was recently added to the NPCSC’s tasks. The drafters must be under enormous pressure to meet the leadership’s demand to churn out something acceptable “as fast as possible.” I recall what such pressure made Chinese Ministry of Finance officials feel like in 1980-81 when the leadership was calling for them to crank out tax legislation that would be acceptable to the U.S. Treasury Department so that US oil company taxes to China would be creditable against their US taxes. It was a stressful time for the bureaucracy. In the current case, the self-imposed urgent deadline of the leadership, although vague, seems much stricter because of the heightened international focus on this development. Not a great environment for the calm reflection required to answer adequately the many complex issues of international, constitutional and criminal law involved in the forthcoming legislation. 

What should we infer if there is a very last-minute listing, or lack thereof? Is the delay the result of an inability of the leadership to reach consensus on the law’s content?  Of course, a special session can be convened in ten days or so. Perhaps that would be a special treat to mark the Party’s 99th birthday on July 1. 

The upcoming national security law’s impact on democratic organizations in Hong Kong

By Jerome A. Cohen

As Hong Kong police broaden their attacks upon democratic organizations, they have notified a number of civic leaders to appear in court for “inciting” others to take part in unauthorized assemblies on June 4th. Ten are members of the Hong Kong Alliance.  

The situation for targeted Hong Kong civic groups is likely to soon become even worse, reaching all in the SAR who are deemed to “support” any such organizations if banned in Hong Kong or, if the organization is not yet banned in Hong Kong,  if it is regarded as having “supported” any organizations banned on the Mainland.

As I noted in an earlier blog, this is not some far-fetched law teacher’s nightmare but the enthusiastic elucidation of the former Hong Kong Director of Public Prosecutions, the formidable Grenville Cross. His recent article in the SCMP, a slight redo of the one he posted in CGTN, gives invaluable, detailed insight into how Hong Kong’s Director of Public Prosecutions may apply the new legislation after investigations by the newly-established offices of the PRC Ministry of Public Security and Ministry of State Security and their local police subordinates.  

Cross points out that anyone in Hong Kong who is deemed to “support” a banned organization may be snared as a criminal. In the CGTN essay he includes as possible criminal activity “support” for a HK organization that is somehow affiliated with a banned Mainland organization. Yet how are Mainland organizations banned? For what reasons? By what procedures, with what evidence and by whom? And how are these questions to be dealt with in Hong Kong? And what will be deemed sufficient “support”? Attending a meeting? A protest march convened by the organization? Payment of annual dues? And what about the contacts of Hong Kongers with foreign organizations? Hong Kong is now indeed the victim of a “political virus” that will cause a permanent lockdown!

Forecasting Hong Kong’s National Security Law

By Jerome A. Cohen

This article offers the most detailed forecast I have seen of the legislative process for the Hong Kong National Security Law that is currently underway in the Standing Committee of the National People’s Congress. The anticipated procedure is not the customary one since an emergency-type schedule is apparently to be pursued. If a public consultation is nevertheless to be conducted on the proposed draft or drafts, it apparently will occur on a foreshortened basis, with less time than usual for popular responses to be submitted and considered by the legislative drafters. This might, of course, diminish the desired propaganda impact of the public consultation.  

In the meantime, the PRC and the Hong Kong government are doing all they can to repress local democratic opposition to the legislation and mobilize and coerce support from officials and elites in business, education, media, legal and other sectors, despite the public’s lack of knowledge about the content of the legislation. The PRC is trying to propagate the belief that, since all countries need national security laws, those laws are all necessarily alike, so there is nothing to be worried about. 

Furthermore, it is not unduly cynical to believe that this rushed timeline is an effort to ensure that candidates for Hong Kong’s Legislative Council have declared their support of the law before the September election. In light of experience, it seems logical that this is the case. However, democratic candidates should be better prepared than they were in the past to protect against the possibility of moves to disqualify them. Certainly, they should not fall into the trap of grandstanding in ways that will lead to their elimination. How to do that while still making their true views clear may not be easy, but there is time to develop ingenious and effective responses in advance.

Of course, the threat of criminalizing previously tolerated speech will confront and affect all people in HK, presumably including foreigners. Will criminal prosecutions be brought against alleged offenders from the time the NPC Decision was adopted on May 28 or only from the date of the forthcoming legislation’s promulgation? Will it encompass pre-May 28 conduct? It remains to be seen whether the text of the legislation will mention ex post facto justice and any exceptions to be allowed to the universally admired principle against retroactive application of criminal laws.

The new legislation will undoubtedly raise a host of other thorny legal issues, including whether a special court will be established for relevant trials and whether its procedures will respect Hong Kong’s common law practices and laws and the provisions of the International Covenant on Civil and Political Rights that protect Hong Kong in accordance with the Sino-British Joint Declaration on Hong Kong. These issues will be discussed in subsequent blogs.

Admirable Advocate Martin Lee

By Jerome A. Cohen

I was asked by a journalist about Martin, and thought I should share what I know about this outstanding lawyer/advocate. 

Martin Lee

I have known Martin slightly and admired him hugely for decades as both a lawyer and public figure and have seen him on his recent visits to the US, often accompanied by Anson Chan and on the latest visit by Jimmy Lai. On his last visit to NY I invited him and Jimmy Lai to speak at the round table that I run at the Council on Foreign Relations concerning US Foreign Policy and the Rule of Law in Asia. Martin, even at 80, was a tiger. 

Here’s an anecdote about Martin that may be an instructive one today, given the current struggle over the Basic Law. Not long after the 1997 Handover, I was speaking at a business conference in Shanghai and, to my surprise, was invited by Hong Kong’s first Chief Executive, C.H. Tung, to have breakfast with him. I had only had one previous conversation with CH but we had a good mutual friend. CH is a likeable person and was a strong supporter of improving relations between the Council on Foreign Relations (CFR), where I then directed Asian studies, and Hong Kong. We both had been enthusiastic about the idea of setting up a CFR branch in Hong Kong but that idea didn’t make progress once, in our previous conversation, I told CH that CFR was open to people of different viewpoints and that Martin Lee would certainly be eligible for membership in a Hong Kong branch. CH made clear that the prospect of Martin’s membership diminished his enthusiasm for the proposal.

Despite that initial disappointment, at our Shanghai breakfast, I thought I would try out another useful idea on CH.

The Basic Law provides for a Basic Law Committee (BLC) to advise the Standing Committee of the National People’s Congress (NPCSC) on its responsibility for interpreting the Basic Law. Its twelve members, six from Hong Kong and six from the Mainland, include legal experts from both jurisdictions. It was unclear, however, what role the BLC was actually to play. One possibility was that it might have been developed into a serious public tribunal for recommending appropriate interpretations of the Basic Law to the NPCSC, following procedures analogous to those of the Judicial Committee of the Privy Council in the House of Lords that had been the highest authority for dealing with UK constitutional questions relating to Hong Kong while Hong Kong was a colony. The BLC might have established a practice of holding judicial-type hearings, preferably in public, at which varying aspects of the Basic Law issues in question might be adequately ventilated by legal and policy experts before the BLC made its recommendations to the NPCSC. Indeed, I suggested, a custom could even be established by the NPCSC whereby it accepted the BLC recommendations. Such an implementation of the Basic Law would maximize the confidence of Hong Kong’s people that the Basic Law would be properly interpreted and the Sino-British Joint Declaration properly carried out in accordance with the legitimate expectations generated by the language of those documents.

CH patiently heard my suggestion but then immediately responded: ”Ah, that would only give Martin Lee and his kind an opportunity to make more trouble.”

I was disappointed because it seemed evident that the key to the success of One Country, Two Systems would be the arrangements for faithful interpretation of the Joint Declaration and the Basic Law. The BLC could have become an important vehicle for building confidence that NPCSC decisions would not be merely the product of secret, political Beijing backrooms, but of a transparent, legitimate process that fulfilled the expectations generated by the Joint Declaration and the Basic Law. This is what is at stake as we await the results of the NPCSC deliberations that will determine the content of the forthcoming national security legislation for Hong Kong. Will the BLC even be consulted and at what stage of the process that has been going on for some time? Martin Lee, it should be noted, was not designated to be one of the Hong Kong members of the BLC. So much for troublemakers!