Hong Kong’s new national security law


Here are some excerpts from an article posted to the China Collection website by Donald Clarke, of George Washington University Law School. The full article may be seen at https://thechinacollection.org/hong-kongs-national-security-law-first-look/

Article 38 states, “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.” I know of no reason not to think it means what it appears to say: it is asserting extraterritorial jurisdiction over every person on the planet.  Remarkably, this provision gives the Law an even broader reach than mainland criminal law. Under mainland criminal law, a foreigner is not liable for an act that’s a crime under the law unless either the act or the effect occurs in China. The Nat Sec Law has no such limitation. Suppose a US newspaper columnist advocates Tibetan independence in their column. They are liable under mainland criminal law only through a real stretching of the law, and in practice, this level of stretching is pretty rare. But they are liable under the Hong Kong national security law without any stretching at all. If you’ve ever said anything that might offend the PRC or Hong Kong authorities, stay out of Hong Kong.

This provision also raises another issue. Suppose you are the above newspaper columnist and you travel not to Hong Kong but to Beijing. Although you may have committed no crime under PRC criminal law, you have under the Nat Sec Law. What if the Hong Kong authorities ask the mainland authorities to detain you and send you down to Hong Kong? Will the mainland authorities turn them down? (Sounds like it will be unsafe for all Chinese abroad to make unpatriotic statements if they intend ever to return to or visit HK or the mainland. This should give students on Canadian campuses additional incentive to report on each others’ statements and conduct and regulate their own.) Article 40 provides that jurisdiction…

Jurisdiction-who handles alleged crimes-is a very important part of the Law.

Article 40 provides that jurisdiction is in the hands of the Hong Kong authorities by default, but that it can be taken away by the mainland’s Office for Safeguarding National Security (more on that when we get to Article 48).  Trials are to be conducted in public, except (you knew this was coming) when the authorities decide not to conduct them in public, on grounds of state secrets, public order, or “other circumstances” (Article 41).

Article 42.  “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.” In other words, the burden is on the bail seeker to prove that they won’t continue to commit crimes.

Article 60.  The acts performed in the course of duty by the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region and its staff in accordance with this Law shall not be subject to the jurisdiction of the Hong Kong Special Administrative Region.

In the course of performing duty, a holder of an identification document or a document of certification issued by the Office and the articles including vehicles used by the holder shall not be subject to inspection, search or detention by law enforcement officers of the Region. In other words, they are untouchable under Hong Kong law. This is real Gestapo-level stuff. And here’s the kicker: it would seem they are untouchable under mainland law as well. Suppose one such officer commits a deliberate homicide “in the course of duty”. Not liable under Hong Kong law.

Well, what about the Criminal Law of the PRC? Unfortunately, the only PRC laws applicable in Hong Kong are those listed in Annex III to the Basic Law, and the Criminal Law is not listed there. Incredible. It seems that officials of the Office for Safeguarding National Security can move around Hong Kong in their own little lawless bubble.