Hong Kong: the National Security Law’s Shock Wave

Author

Special Advisor and Resident Senior Fellow - U.S. and Asia

The perception of the impact from the National Security Law (NSL) imposed on Hong Kong will vary from sector to sector. It has been immediate on political activists and the large segment of the population that was involved in mass protests for almost a year and a half. Disbanding of political groups that will likely be targeted immediately, preparations for departure from the Special Administrative Region (SAR), and a literal overnight disappearance of visible signs of individual activism show that the Hongkongers have taken the full measure of what the law brings: an alignment with PRC political control practices.

But the many expatriates who have made Hong Kong their permanent or temporary home may see the situation differently. The business community, academics, journalists and lawyers had become accustomed to a Hongkongese extraterritoriality, safeguarded by the Basic Law until 2047, according to an international treaty, as well as by China's economic interest. Shreds of this situation remain, since Hong Kong's financial centre remains the first point of exit for Chinese capital. Umbrella companies, initially intended to circumvent US bans on financial transactions with China, have become shell companies, acting as the first layer concealing the origin of Chinese investments abroad. The English language media and academic community may believe they will be spared the full extent of the law, though one can safely assume self-censorship will inevitably increase.

France has a typical dilemma: Hong Kong has long been an attractive location for French banks and insurance companies, which have often conducted their Chinese operations from Hong Kong. This includes many luxury and spirits companies, whose products sold in China are typically imported from Hong Kong, but also culture, media and social sciences, with journalists based in Hong Kong, a research centre on China, a China-focused journal (under various names since the late 1970s), a large Alliance Française, the French International School and various festivals. Of course, the coronavirus has slowed down the pace of these activities, and perhaps our cultural relations have not been excessively audacious recently. The last "university" conference mentioned on the French Consulate’s official website dates back to October 2019 - Dominique de Villepin had then celebrated Napoleon and his "legitimacy by deeds" - an expression that President Xi would have approved if he had heard of it. In addition, German tourists are now warned by their government of the possible hazards from the National Security Law.

This follows 18 months of protests, first against the creation of an extradition bill, then to claim a true universal suffrage. This follows 18 months of protests, first against the creation of an extradition bill, then to claim a true universal suffrage. The major demonstration that took place on June 16, 2019 and which brought together nearly a third of Hong Kong's total population - newborns and elderly citizens included - will remain an unprecedented case in the history of protest, with a rather unparalleled degree of self-organization and pacifism.

These demonstrations continued until the Covid-19 crisis put an end to large gatherings. Local elections gave a large victory to pro-democracy candidates. By early September, the SAR government - and, no doubt, the PRC party-state - had suspended the project of an extradition law.

The major demonstration that took place on June 16, 2019 will remain an unprecedented case in the history of protest, with a rather unparalleled degree of self-organization and pacifism.

This proved to be a pause and not a retreat. Although the Chinese government had postponed the extradition project sine die and refrained from a much-feared military intervention, the situation was nonetheless contradictory. The very use of the term extradition did not make much sense applied to a territory that is part of the People's Republic of China (PRC). Universal suffrage is what China has consistently fought throughout the negotiations with the United Kingdom, and which it has not allowed to flourish since 1997. By October 2019, a little-noticed mention in the CCP’s 4th Plenum resolution shows that the wheels were turning - a national security response was in the offing.

Both the international business actors present in Hong Kong, and many of the supporters of the democracy movement, may have overestimated China’s interest in protecting the Hong Kong economy. This mistake persists. Countless companies and economic entities, accustomed to the status quo in Hong Kong, will cling to the idea that this National Security Law was devised against hot head militants and other strangers to the business world.

They will be proven wrong. A judicial system and the rule of law – which more or less existed in Hong Kong – cannot persist under these conditions. The terms of the NSL make it easy to imagine its extension to the field of economic actors. Hong Kong’s special position as an airlock between two opposite economic and political systems has just vanished before our very eyes. The optimistic rationale is therefore obsolete. The Greater Bay Area is crushing Hong Kong in economic terms, not to mention Shanghai. The largest so-called "private" Chinese companies such as Alibaba or Tencent have their headquarters in the Virgin Islands and other offshore locations.

True, Beijing could have waited until 2047, but the political equilibrium in Hong Kong itself had changed. Being young in 1997 meant having an entire working life ahead. In 2020, the clock is ticking much faster. Besides, between 1997 and 2020, the Chinese Communist Party (CCP) dispelled hopes of a move towards liberalization, both at home and abroad. Xi Jinping chose to force his way through, anticipating 2047 and catching democratic countries’ diplomatic bodies off-guard with a..."legitimacy by deeds".

So, let’s go through the main provisions of the NSL, promulgated without prior disclosure, and already enacted. National security is the responsibility of the Chinese Central Government. No one can be a candidate to an elected office without swearing allegiance to the Basic Law and to the Hong Kong Special Administrative Region (SAR). The SAR is tasked with promoting the National Security Law in the media, schools, networks and organizations of society. The SAR is also required to establish a National Security Council (國家安全委員會), with a Special Adviser. Its activities are not subject to judicial supervision. Besides, China's central security organs are located in Hong Kong and are guaranteed full immunity and secrecy for their activities. Their National Security Bureau (維護國家安全公署) is established locally. Both operate without any interference from SAR’s other administrations.

The person in charge of national security for the Hong Kong police is appointed by recommendation from these bodies, and can choose to be advised by specialists from outside the territory. Any person or entity assisting a violation of the NSL, directly or indirectly, is liable to prosecution. Its assets may be seized, and business permits and licences revoked, including from the outset of the investigation period. Foreign organizations and individuals are also liable under the NSL, as well as those who receive instructions from them, including non-residents of Hong Kong

Between 1997 and 2020, the Chinese Communist Party (CCP) dispelled hopes of a move towards liberalization.

All trials can be held in secret. If necessary, juries can be replaced by three judges, and for this purpose the mention of a jury in any legal document of the SAR will be understood as encompassing that of a judge! These judges may be dismissed during their term of office if any of their statements contradict the Basic Law. The joint scope of action of the SAR Security Council and the National Security Commission attached to the Central Government includes foreign organizations, NGOs and news agencies in Hong Kong. Prosecution, trials and proceedings, execution of sentences for crimes under the NSL will be conducted by the Central Government’s Supreme People's Procuratorate (最高人民檢察院) and according to the PRC Criminal Procedure Law in three cases: if foreign influence is established, if an impediment to the SAR's jurisdiction is found, or if it poses a serious threat to national security. A key official from China’s Liaison Office has already clarified the trials may take place inside mainland China.

The aforementioned rules apply to four crimes, broadly defined and punishable by life imprisonment: glorifying secession about "any part of the PRC’s territory" (and thus also of Taiwan); subversion of state authority, including "obstructing" the authority of the state and the SAR government, who are mentioned separately; terrorism, including destruction of vehicles or serious interference with a public service; and lastly, collusion with foreign forces, including in the application of sanctions or blockades against China, or obstructing the drafting and implementation of laws

This is only a brief summary of a text which is characterized by a great deal of ambiguity, leaving the door open to interpretation. But it is in line with other extremist laws and regulations adopted by the central government in recent years. For example, threatening foreign companies that apply foreign governments’ sanctions against China is an integral component of China's legal arsenal. Yet, it was hard to foresee that the CCP and Xi Jinping would go this far and to such length: the text enacts full legal insecurity in Hong Kong, and a state of exception for Chinese Security’s activities. Additionally, it reverses the presumption of extraterritoriality on which Hong Kong has based its existence until now. Henceforth, this law can be applied to a non-citizen and non-resident, for any offence against the law committed abroad.

Special attention should be paid to the issue of economic news and analysis. Their release is now tightly controlled on the mainland. In the new NSL, neither "state secrets" or "business secrets" (or, as a matter of fact, "national security") are defined in any way. The law could very easily be applied to several economic issues: negative figures regarding the economy, unfavorable disclosure on companies, issues regarding corrupt business practice. In addition, will banks be held responsible for accounts and money transiting to and from individuals or organizations charged with one of the four listed crimes?

Given the radical nature of this law, the EU’s (including France) reactions thus far appear to be meek. Calling for the guarantee of individual rights and the respect of the Basic Law no longer makes much sense: the NSL refers to them cynically, while violating them without restraint. It is indeed the violation of the Basic Law, an international treaty concluded with the United Kingdom and filed with the UN, that must be condemned. On the other hand, the European Parliament voted by 564 votes to 32 to bring an action before the International Court of Justice (ICJ), with 64 abstentions, including that of the French far right party, Rassemblement National. This is rather more concrete than those who merely express their "concern" or their "attachment" to the "One Country, Two Systems" principle. These terms were very ambiguous from the outset, and the NSL leverages this ambiguity while effectively putting an end to the autonomy guaranteed by this principle and by the Basic Law.

On the other hand, the European Parliament voted by 564 votes to 32 to bring an action before the International Court of Justice (ICJ).

It will no doubt be counter-argued that this legal recourse can only remain a mere formality. China does not recognize the decisions of the ICJ, from which the United States have previously announced their intention to withdraw. If there is indeed no means of sanctioning the violation of an international treaty, it is even more serious with China sitting as a permanent member of the Security Council, thus ensuring the impotence of the UN. Locally of course, the balance of power is entirely in Beijing's favour.

Sanctions therefore appear to be the only possible response – which China clearly expects. These sanctions may relate to Hong Kong's status as a separate territory, as the United States wishes, but this would be far from enough. It is clear that Xi Jinping is prepared to bear the costs of a considerable deterioration of Hong Kong's position. Beyond his belief that in the long run, capitalists will, again, sell the rope to hang themselves, his strategic horizon is the endless struggle to ensure the legitimacy and primacy of the political system embodied by the CCP.

Contrary to some persisting European (and French) illusions about China's attachment to multilateralism (!), the truth is that China has engineered a situation where it can reverse its commitments - either because they were legally unclear, or because there was no sanction mechanism. This of course applies to issues of public good such as climate change, debt or Africa. At the minimum, no partner should enter into an open-ended commitment with China without clauses providing for verification, redress and sanction mechanisms. Xi Jinping - and the CCP - have made it impossible to rely on trust or on the permanence of common interests

Copyright : DALE DE LA REY / AFP

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Hong Kong: the National Security Law’s Shock Wave