After weeks of speculation and concern surrounding the contents of Hong Kong’s national security law, Beijing on Tuesday night finally unveiled the full text of the feared legislation, just one hour before it was due to take effect.
However, even the full text of the law—with its broad definitions open to interpretation not only by Hong Kong’s courts, but mainland ones too—has left legal experts stumped as to how the law might be applied. Meanwhile, reports on Wednesday that protesters had already been arrested for allegedly violating the new law’s provisions raise questions over mainland officials’ assurances that the law would only apply to a small number of individuals.
As Hong Kong lawyer and author Anthony Dapiran, who issued a lengthy commentary on the law on Wednesday, put it in a Tweet: “What does the national security law mean for HK’s rule of law? We now have a major piece of criminal law, with penalties of up to life imprisonment, which no HK lawyer or judge can definitively interpret, advise upon or apply. Think about that.”
But even with the lingering uncertainties, the law does include some revealing passages—each raising still more questions from experts—about what’s in store for the restive Special Administrative Region.
Mainland security agents in Hong Kong
For one thing, the text of the law confirms that mainland security officials will have free rein to operate inside the city under the auspices of a new Office for Safeguarding National Security (OSNS). What’s more, though staff of the office “shall abide by the laws of the Hong Kong Special Administrative Region,” the law also explicitly states that their actions “shall not be subject to the jurisdiction of the Hong Kong Special Administrative Region.”
Indeed, it adds, anyone producing OSNS credentials can’t be stopped or searched by Hong Kong police.
Hong Kong’s government, meanwhile, must also create new bodies tasked with overseeing the implementation of the law, including a new police branch, a new office of the Justice Department to oversee prosecutions, and a Committee for Safeguarding National Security comprising top government officials and an advisor appointed by Beijing. The committee will be “under the supervision of and accountable to the Central People’s Government.”
No judicial review
“Information relating to the work of the Committee shall not be subject to disclosure,” the law says. “Decisions made by the Committee shall not be amenable to judicial review.”
The new prosecutorial office, which must be staffed with input from mainland authorities, will exercise jurisdiction over cases covered under the law—except in “complex” cases, or ones in which the Hong Kong government is “unable” to enforce the law.
Those cases will fall under the jurisdiction of the mainland’s courts and prosecutors, implicitly confirming the possibility of extradition to the mainland, fears of which sparked a months-long protest movement in Hong Kong last year.
Extent of China’s jurisdiction is unclear
How those cases will ultimately be defined, however, remains unclear.
Fu Hualing, the law dean at the University of Hong Kong, told the South China Morning Post that the conditions for Beijing’s jurisdiction remained open to broad interpretation.
“Once the central government takes over [jurisdiction], it takes away everything,” Fu said. “There is a ‘nationalisation’ of certain crimes. For the first time, national laws on criminal matters apply in Hong Kong and there is built-in rendition.”
Broad and vague definitions of crimes
The broadly worded legal definitions of the crimes themselves aren’t much clearer.
The law set out to criminalize four broad classes of crimes: secession, subversion, terrorism, and collusion with foreign powers.
The definition of subversion, like the other crimes listed, is expansive, and includes efforts by force, threat of force, or “other unlawful means” to overthrow—or “undermine,” a term that is not defined—the governments of Hong Kong or greater China.
It also criminalizes “attacking or damaging the premises and facilities used by” the Hong Kong government, a provision that could feasibly include the numerous acts of vandalism that took place during last year’s protests.
The section on terrorism, in addition to criminalizing more conventional acts of terror—for instance, bombings—also forbids “sabotage of means of transport, [and] transport facilities.” MTR stations were frequent targets of protesters’ ire last year, with many smashing up ticketing machines and turnstiles.
The law defines a terror group as any group “which commits or intends to commit” the offenses laid out.
The definition of secession, meanwhile, specifies that the law applies “whether or not” the alleged offender uses force, or even threats of force, and lists three vaguely defined actions covered under the law: “separating” Hong Kong from China, “altering by unlawful means the legal status” of the city, and “surrendering” the city to a foreign country.
Even chanting could get you in trouble
A new police flag unveiled at protests against the law on Wednesday warned that demonstrators could be in violation of the secession clause by so much as chanting pro-independence slogans or calling for the “liberation” of Hong Kong. Some were arrested under the new law for being in possession of pro-independence materials—an interpretation Dapiran said didn’t square with the actual wording of the law.
“Speech acts (flags, slogans) do not fit within the acts of ‘secession’ defined in the law,” he said. “Are HK Police misinformed, taking advantage of the chilling effect, or showing how ‘flexibly’ the law will be interpreted?”
Companies are not spared
The definition of collusion with foreign powers is similarly broad, encompassing not only traditional acts of espionage, like selling state secrets, but also “provoking by unlawful means hatred among Hong Kong residents towards the Central People’s Government or the Government of the Region.”
Companies, the law notes, can also be held responsible.
Applicable even to those abroad
And not only do the provisions of the law govern acts that take place in Hong Kong, they “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.”
The clause raises the possibility that anyone, anywhere, could run afoul of a Hong Kong law without ever having set foot in the city.
“I guess that implies that 565 members of the European Parliament committed ‘crimes’ under this code, when they adopted the EP's recent resolution on Hong Kong,” mused the German European parliamentarian Reinhard Butikofer in a tweet, apparently referring to a resolution calling for controls on exports to Hong Kong. “Interesting perspective.”
Sophie Richardson, China director at Human Rights Watch, replied, “565 MEPs plus…the rest of the earth's population, apparently.”
To clear up any hint of confusion, the law also notes that it supercedes Hong Kong law in the event of any conflict.
“This Law shall prevail where provisions of the local laws of the Hong Kong Special Administrative Region are inconsistent with this law,” it reads.
Almost all of the law’s provisions carry sentences ranging from three years to life in prison, depending on the severity of a suspect’s involvement.
In a separate tweet, Richardson on Wednesday called the law “the opposite of necessary and proportionate—the intl standard. It is limitless—virtually any behavior can be construed as criminal.”
But longtime political analyst Johnny Lau suggested to the SCMP that Beijing’s decision to withhold details of the law throughout the process was deliberate.
“It was meant to create a sense of anticipation and a fear of the unknown,” he said. “Beijing also wanted to tell the Hong Kong people to learn the central government’s way of doing things, something many Hong Kong people have not got used to 23 years after the handover.”
But Beijing’s man in Hong Kong, Luo Huining, head of China’s liaison office in the city, perhaps summed up the purpose of the law best.
“The law is a sword hung above,” he said, according to HKFP. “As time goes by, we will see more clearly that the promulgation of the national security law marks the turning point of chaos to order in Hong Kong.”