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:
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
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?)
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.
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.