On June 30, 2020, the Chinese government enacted Hong Kong’s National Security Law (Chinese | English), which was not officially published until the same time when it became effective, at 11 pm local time, foreclosing any meaningful public input (at least from the HK public) to the new law. Within hours after the publication of the law, several commentators have made an effort to dissect and analyze the new law, such as the note by Professor Donald Clarke, and the videoconferencing sessions organized by Hong Kong Democracy Council. More analyses should become available as the international communities scrutinize and analyze the new law in greater scope and depth.
At a quick glance, the new law imposes several measures that severely restrict or eradicate the autonomy and civil rights previously vested in HK. Without going into great details, and not meant to be complete, I have summarized these measures below.
|Mainland Control||The Chinese government (National People’s Congress) has the sole “power of interpretation” of the law.||65|
|The law “prevails” over any HK laws.||62|
|The law creates a “Committee for Safeguarding National Security” (CSNS) to oversee implementation of the law. CSNS “shall be under the supervision of and accountable to the” Chinese government.||12|
|The head of the secretariat of CSNS, who supposedly will be in charge of the real work at CSNS, must be appointed by the Chinese government.||13|
|The Chinese government will designate a “National Security Adviser” to “provide advise” to CSNS.||15|
|The law creates a “National Security Department” (NSD) within the HK police force to investigate violations against the law. The head of the NSD must be appointed with approval by the Chinese government.||16|
|NSD can be staffed by “professionals and technical personnel” from outside of HK (ie, China).||16|
|The law creates a “Specialized Prosecution Division” in the Department of Justice to prosecute violations. The head of the division must be appointed with approval by the Chinese government.||18|
|The law creates an “Office for Safeguarding National Security” (OSNS), a Chinese government body staffed directly by Chinese government, tasked, among others, with “collecting and analyzing intelligence and information” in HK. OSNS is funded directly by the Chinese government.||48, 49, 51|
|OSNS has the power to exercise jurisdiction over any case involving national security, usurping the HK jurisdiction, and send the case to China for prosecution and sentencing according to Chinese laws.||55, 57|
|OSNS is not subject to the jurisdiction of HK.||60|
|Vague & Broad Crimes||The law criminalizes the acts categorized under “Secession”, “Subversion”, “Terrorist Activities”, & “Collusion with a Foreign Country or with External Elements”, which are vaguely and broadly defined.||20-30|
|Extraterritorial Application||The law applies to offences committed by any “person who is not a permanent resident” of HK.||38|
|Secrecy||The work of CSNS will be kept secret and not disclosed to the public.||14|
|No Judicial Review||Decisions made by CSNS “shall not be amenable to judicial review”.||14|
|Trial without Jury||A case can be tried “without a jury by a panel of three judges”, on broadly stated grounds.||46|
|Unaccountable Broad Powers||Any person, be it an institution, organization, or individual must “comply with measures taken by” OSNS. Further, OSNS is not subject to HK jurisdiction or law enforcement.||57, 60|
Inevitably, the new law will have significant international ramifications, not limited to HK only, evidenced by the sanction legislation passed promptly by US Congress in response to the new law. Notably, the new law is applicable to ANY person on the earth, a/k/a extraterritorial application. (Article 38. See the table above.) That means, for example, a foreigner non-HK resident may be found to have violated the new law by posting on twitter the words, “Fight for Freedom! Stand with Hong Kong!” In such cases, the person may be prosecuted under the new law if he/she is present in HK or China. Or, in a worst-case scenario, if the person resides in a country having an extradition treaty with China, he/she may face the specter of having to defend an extradition request from China.
What is more, the law creates the Office for Safeguarding Nation Security (“OSNS”), which is an agency of the Chinese government, but stationed within HK. This agency has tremendous powers, including “collecting and analyzing intelligence and information concerning national security” (Article 49(3)) and “handling cases concerning offence endangering national security” (Article 49(4)). It can take over jurisdiction from local HK government (Article 55) and send the case to China for prosecution and sentencing according to Chinese laws (Articles 56 & 57). Moreover, any person, be it an institution, organization, or individual must “comply with measures taken by” OSNS (Article 57). And yet, despite the tremendous powers OSNS wields, it is not subject to HK jurisdiction or law enforcement (Article 60). According to Professor Clarke, OSNS is not subject to Chinese law either. No wonder Professor Clarke lamented that the OSNS was “untouchable” and “Gestapol-level stuff”!
Considering its vague and broad scope, the extraterritorial application, the creation of such an unaccountable yet powerful agency as OSNS, and other authoritarian aspects of the new law, the business risks for international communities doing business with HK and China have increased substantially. It is unclear at this point how the new law will be enforced. Also, potential economic gains from the China markets and trades will likely remain an important factor in business risk assessments, which is itself a complicated undertaking. If we have learned anything about global risk assessments from recent events, however, it is that underestimating the risks in the early stage may prove to be unforgiving!