Small print of Hong Kong law lets Beijing get away with murder

Few people expected Hong Kong’s new national security law to be a model of enlightened legislation. It is not.

Hong Kong police load protesters on to a bus on Wednesday night. Picture: AFP

It was announced unilaterally by the Chinese government, devised in secret in Beijing, and imposed without consulting local people. Few people expected Hong Kong’s new national security law to be a model of enlightened legislation. But a few days after it was imposed on the territory, the small print reveals a law as bad as anyone in the city feared.

According to legal experts, human rights activists and diplomats, it is a vaguely worded and open-ended document that could be used to stifle anyone who criticises the Hong Kong government, Chinese government or the communist party, whatever their nationality and wherever they live.

One of its clauses, Article 38, asserts authority over anyone, in any country, who is held to break its terms. And the agents of the mainland empowered to oversee the new law can literally get away with murder.

The speed with which the law has been thrust on Hong Kong, less than six weeks after being announced, is a sign of China’s growing confidence in asserting itself, a complement to its military moves on territory disputed with India and in the South China Sea.

“The passing of the national security law is a painful moment for the people of Hong Kong and . . . represents the greatest threat to human rights in the city’s recent history,” Joshua Rosenzweig, of Amnesty International, said.

The law covers four offences: terrorism, separatism, subversion and collusion with foreign powers. Anyone guilty could receive prison sentences of up to 10 years.

There is wide room for interpretation by prosecutors and the courts. Offences that can be regarded as terrorism include damaging government property, such as public transport facilities, police stations and mainland government offices that were vandalised during last year’s anti-government demonstrations.

The foreign powers clause could be used against Hong Kong politicians who have called for international sanctions, or activists who document human rights violations and share them with foreign organisations and governments.

Symbols and views are now criminalised. Waving a flag that refers to Hong Kong’s independence, the subject of Wednesday’s first arrest, is a potentially grave offence. A protester holding up a USflag and calling for international help could be deemed to be colluding with foreign forces.

Article 29 criminalises the incitement of hatred of China’s central government and Hong Kong’s regional government.

The legislation makes a nod to international rules, but these are often undermined. Article 4 says that rights granted under the International Covenant on Civil and Political Rights should be upheld. Article 41 says that trials must be public, except when the authorities decide that they should be closed, for whatever reason.

Judges in cases involving the security law are to be appointed by the Hong Kong chief executive, who is effectively chosen by Beijing. The justice minister can choose to have cases heard by judges rather than a jury. A Committee for Safeguarding National Security, answerable to Beijing, will meet in secret; no court can challenge or review it.

A new branch of the Hong Kong police, the National Security Division, can recruit from the mainland. A separate Office for Safeguarding National Security, which can send cases to Chinese courts, will have staff appointed by Beijing. Its officials will be exempt from investigation by the Hong Kong police.

“In other words, they are untouchable under Hong Kong law,” Donald Clarke, a professor at George Washington University Law School, said. “This is real Gestapo-level stuff.”

Article 38 applies the law to offences committed “outside the region by a person who is not a permanent resident of the region”.

Professor Clarke said: “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. If you’ve ever said anything that might offend the Chinese or Hong Kong authorities, stay out of Hong Kong.”

The Times