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Thursday, August 13, 2020

Made-in-China law keeps Hong Kong guessing whether it’s guilty

The 35-page legislation drafted behind closed doors in Beijing represents an uneasy marriage between China’s “socialist legal system with Chinese characteristics” and the common law preserved in Hong Kong after the British left in 1997.

By: Bloomberg | Published: July 2, 2020 3:28:56 pm
Demonstrators gather during a protest in Hong Kong. (Photo: Bloomberg)

Chinese officials have described Hong Kong’s new national security law as “tailor-made” for the former British colony. Lawyers in the city, however, say the statute may be open to abuse and difficult to apply.

The 35-page legislation drafted behind closed doors in Beijing represents an uneasy marriage between China’s “socialist legal system with Chinese characteristics” and the common law preserved in Hong Kong after the British left in 1997. Key provisions against terrorism, secession, subversion of state power and collusion with foreign forces feature the harsh sentences — as long as life in prison — and sweeping wording of similar offenses on the mainland.

“It’s deliberately vague,” said Antony Dapiran, a lawyer and author with more than 20 years of experience working in Beijing and Hong Kong, where he currently lives. “That’s the way that the Chinese legal system works. It leaves plenty of scope for interpretation, plenty of scope for the authorities to target whoever they want.”

That will likely fuel uncertainty not only among Hong Kong’s 7.5 million residents, but the some 1,300 foreign companies that have set up regional headquarters there in part due to its civil liberties and professional courts. The ambiguity may deter many people from behavior that they’re not sure is illegal, an effect that Zhang Xiaoming, a top mainland official overseeing Hong Kong, referred to as a “sword of Damocles” when describing the law on Wednesday.

Here are some key takeaways:

1. Broad Definitions

Although Chinese and Hong Kong officials have said an “extremely small” number of people would face arrest, the four major crimes sweep up a broad range of actions. Many appear to cover even non-violent tactics employed by protesters and their supporters in a wave of unrest that gripped the city last year, such as slowing train traffic, waving pro-independence banners, vandalizing or besieging government buildings, or aiding people who take more radical action.

On Wednesday, Hong Kong police held flags warning protesters that chanting slogans like the common refrain “Hong Kong independence, the only way out!” could now face criminal charges. A man accused of carrying a “Hong Kong Independence” banner was the first person arrested under the new law.

A demonstrator is arrested by riot police during a protest in Hong Kong. (Photo: Bloomberg)

When pressed for details about who would be covered by particular crimes on Wednesday, Hong Kong Chief Executive Carrie Lam said “whether an act has violated the law can’t be explained through a simple discussion here.” Her security secretary, John Lee, said the goal would be to educate residents so the city eventually sees “a zero number” of cases.

2. Covering Anyone, Anywhere

The legislation boldly claims global jurisdiction over Hong Kong residents and even non-residents. While Chinese laws have made such sweeping assertions before, this one may give pause to the 30 places that have extradition agreements with Hong Kong, including the U.S., Japan and much of Europe.

The language could theoretically cover everyone from exiled dissidents to foreign human rights activists to bureaucrats drafting sanctions proposals. “Clearly with the extraterritorial reach of this law, countries that do have extradition arrangements with Hong Kong will have to look at them critically,” said Dapiran, who wrote “City of Protest: A Recent History of Dissent in Hong Kong.”

3. Foreign Entanglements

While much of Hong Kong’s history has been defined by its role as a bridge between a less open China and the rest of the world, residents and foreigners will now have to be more careful about how they interact. Provisions against foreign collusion introduce a range of new offenses similar to those that Chinese authorities have employed regularly against dissidents, journalists and business people on the mainland.

Joshua Wong. (Photo: Bloomberg)

At immediate risk are activists who have lobbied the U.S. and other governments for sanctions: China’s state media frequently accused prominent activists like Joshua Wong of such activities. Wong’s Demosisto was among at least five political groups that announced their dissolution before the law took effect, with some saying they would continue their operations and advocacy overseas.

The law also called for Chinese agencies in Hong Kong to “strengthen the management of and services” over foreign media and non-governmental organizations in the city, without elaborating. The implication is Hong Kong may adopt oversight similar to China, where charities must register with police and journalists face strict controls.

4. Systems Collide

The attempt to enforce Chinese laws in Hong Kong may raise as many procedural questions as political ones. The mainland uses a civil code based on continental European systems, while Hong Kong uses common law, a British system more reliant on judicial interpretation.

The security law overrides Hong Kong’s own “mini-constitution” and other laws, and it features mandatory minimum sentences that deny Hong Kong judges the ability to consider additional details or the age of a defendant. The legislation also allows for the denial of bail before trial because defendants may “continue to commit acts endangering national security,” despite not yet being proven guilty.

Alvin Yeung, a lawyer who leads the city’s opposition Civic Party, called the national security law a “piece of criminal code that is completely alien to the common law system of Hong Kong.”

5. Mainland Trials

Another vexing question for defendants is which legal system they’ll face: Hong Kong’s open courts and jury trials with British standards of evidence, or secret tribunals under more direct Communist Party influence. The law for the first time allows mainland authorities to prosecute Hong Kong residents in national security cases, limited by only a few broad restrictions.

The Hong Kong Bar Association, which said it’s “gravely concerned” with the law and the way it was introduced, expressed fears that suspects could be “removed to face trial in Mainland China” and this “raises concern as to whether the rights of the accused to fair trial will be adequately protected or respected.”

That has raised questions about whether such defendants could face the death penalty, since China is believed to conduct the most executions in the world each year. Hong Kong abolished the death penalty in 1993 and hasn’t carried out an execution in more than a half century.

Hong Kong Justice Secretary Teresa Cheng indicated Wednesday that the city would have little to say in the matter. “That is already carved out and therefore no longer something that is within the jurisdiction of Hong Kong,” she told reporters. “That will not be within the purview that we will be able to interfere in that sense.”

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