Part two of a two part consideration of this year´s most controversial piece of legislation: A Hongkong author´s take on "One country, two systems": Hong Kong´s new security law and media partisanship:
by Lena Heuyer
On 30 June 2020, China passed a new National Security Law for Hong Kong, to protect the national security in this city. Why is it so controversial for the UK and Australia to condemn this law and to provide offers of citizenship to the people of Hong Kong? And why is this law so important that the German Foreign Minister pressured his Chinese counterpart and said to him ‘Threats don’t fit in here’ at a press conference?
The National Security Law – what does it entail?
The details of the 66 articles were kept secret until after the law was passed. It criminalises any act relating to these four categories:
Secession - breaking away from China
Subversion - undermining the power or authority of the central government
Terrorism - using violence or intimidation against people
Collusion with foreign or external forces
The Legal Framework Controversy
Under the law, Beijing’s central government will, for the first time, be authorised to officially set up a security office in Hong Kong and gain jurisdiction over cases relating to national security. Under Hong Kong’s constitutional law (Hong Kong Basic Law), only the Hong Kong law court has jurisdiction over Hong Kong cases. The establishment of this security office is in clear violation of Hong Kong Basic Law. However, no one from the Hong Kong government has pointed out the problems. Instead, they defended the establishment of the security office.
‘One country, two systems’ is not fully respected in the new law. Hong Kong’s legal system is different to the Chinese one. Human rights lawyers start questioning: how is it possible to hand a suspect over to a system that we do not trust? Will this system be able to ensure the basic rights in criminal proceedings if the suspect is arrested by the secret agents and transferred to Chinese jurisdiction? What is the jury system for the new law? These are some of the worrying areas of this new law, in which neither the Chinese authority nor Hong Kong government has clearly explained or ‘updated’ its citizens, or the world. Without further clarification, the Hong Kong police have already ordered the arrest of six pro-democracy activists living in exile, on suspicion of violating the national security law on 31 July 2020. So far, no one has been arrested by the enforcement officials in other countries. The law has become a political gesture rather than an enforceable reality.
Mainland Chinese security agents operating in Hong Kong are given extensive investigatory powers, and are not subject to Hong Kong law if they’re carrying out “official duties.” There is a huge debate over why the power of these national agents cannot be limited by the Hong Kong law, whose legal values, separation of power, checks and balances, are not upheld in the national security law. Furthermore, defendants in cases overseen by this mainland security office may also be extradited to China, where their right to a fair trial is not guaranteed. The roles of Hong Kong and China have become deeply confused. It becomes increasingly unclear whether jurisdiction lies with Chinese or Hong Kong authorities. It has become something of a mystery. This is unacceptable, considering the new law has been put into effect while such important specifications are still unclear. Procedural justice is all but lacking.
Article 34 Controversy – A law applied to the Universe
Samuel Chu is the first American citizen listed in the recently published Hong Kong police’s order of arrest. He was not born in and has never been to Hong Kong. He is now wanted by the Hong Kong police because of his lobbying activities aiming to influence the US’ countermeasures regarding China and Hong Kong. However, whether he could be brought to justice is another controversy of the law. This demonstrates the loophole - it becomes very difficult to enforce the law outside Chinese territory if other countries have no extradition agreement with China and Hong Kong. In other words, no country believes in fair proceedings being held in China. Indeed, many countries have, since the passing of this law, suspended their extradition agreements with Hong Kong. The effective law enforcement of article 34 does not seem to be very convincing to the international community. Hong Kong has now become a shelter for international criminals.
Be that as it may, supporters praised this new security law, believing it will bring an end to the long-lasting protests and riots disrupting the city since November 2019. With effective law enforcement and deterrent measures, they believe Hong Kong will flourish and business will thrive again, on the condition that businesses in Hong Kong do not, by any act of those four categories, incriminate themselves. However, how an individual can be fully conscious of when they are violating the law becomes the big question, considering the four criminal acts are vast and arbitrary. Jimmy Lai, the media tycoon, has been arrested on suspicion of collusion with a foreign force on 21 August 2020. One hundred police officers gathered in his office building, taking all the computers in the building without a search warrant. This is the first time a search has been conducted by law enforcement officers without a court order. A complete violation of criminal justice — but the new security law has granted the right to search and collect evidence without the necessity of a court order.
China explicitly states that this new law brings the rebirth of Hong Kong. It is vital for China to ensure continued or renewed international confidence in the city of Hong Kong.Worldwide concerns and worries must be addressed, about whether or not the implementation of the new law still adheres to the basic core values of the city – the rule of law.