By enacting the new draconian National Security Law meant to crush pro-democracy protests in Hong Kong, China has armed itself with over-arching powers way beyond its borders.
Mumbai: Think twice now before being even remotely critical of the People’s Republic of China (PRC), Chinese government or its repressive actions in crushing pro-democracy protests in Hong Kong. As per Article 38 of the National Security Law (NSL), which was ostensibly enacted for the Hong Kong Special Administrative Region (HKSAR), shall apply to offences committed by any person who is not a permanent resident of the region (Hong Kong).
However, according to Hongkongers and local legal experts those critical of China could be in trouble if they choose to arrive in Hong Kong or for that matter in any country that is friendly or has extradition treaty with China. The Hong Kong Bar Association (HKBA) and former investigation consultant Elson Tong argue that the new law is silent on the issue of extradition at least for Hongkongers.
Article 38 of the “Law of the People’s Republic of China on safeguarding National Security in the Hong Kong Special Administrative Region (HKSAR), reads thus “This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region”.
Whereas, Article 37 that precedes Article 38, deals with dissenters for acts they might commit outside Hong Kong. Article 37 provides “this law shall apply to a person, a permanent resident of HKSAR, if the person or the body commits an offence under this law, outside the region”.
Things do not stop here, the accused will be charged under Article 20 of NSL for Secession, Article 22 for Subversion, Article 24 for Terrorism and under Article 29 for Collusion with foreign forces to endanger national security of China and HKSAR. Punishment sentences ranges between – minimum three years, maximum 10 years or life imprisonment.
The minimum limit is not below three years. Under the provisions of Article 33, one can only escape the punishment by turning approver and reveal names of your own fellow colleagues, reveal the details of the conspiracy and provide material evidence.
The hush-hush manner in which the National Security Law (NSL) was enacted at 11 pm on June 30 without the English translation of the legislation being circulated, speaks volumes of how much the People’s Republic of China (PRC) wanted to keep it under wraps. Only the Chinese text was available till yesterday to Hongkongers who were used to bilingual judicial system. As one goes on reading the 66 Articles of the NSL, one can only be condemned for life if one is ever held accused.
In the case of right to trial, Article 58 merely states “as early as possible”, which in other words may mean endless wait. While under Article 41, trials may be closed to the public for reasons such as maintaining state secrets and public order. In Article 47, whether or not the trial involves state secrets is decided by the Chief Executive (appointed by China), not the court.
Worst still the powers to interpret the law is vested in the Standing Committee of the National People’s Congress (NPC), which according to the HKBA undermines the judiciary. Furthermore, the Secretary of Justice can take away right to trial by jury on certain grounds without any residual discretion.
Furthermore, bail can be granted if the judge believes that the accused will not continue acts that endanger national security, otherwise bail shall not be granted. Although the law is silent on extradition, the accused could be sent to Mainland China to face trial, which according to HKBA raises questions over fair trial.
The National Security Department so created under the Hong Kong Police Force (HKPF) and its police officers have wide sweeping powers like secret surveillance, require foreign political organisations to provide information and its officers cannot be subject to checking. Besides this the National Security Committee (NSC) set up by the Hong Kong Chief Executive and its decisions cannot be challenged by judicial review.
Most weird aspect of the law is that by Article 9 and Article 10, schools are supposed to promote national security. Elson Tong who writes for Hong Kong Free Press claims that number of school teachers have already been disciplined, suspended or dismissed due to their perceived support for the 2019 pro-democracy protests.
According to the HKBA, the provision in Article 29 that deals with charge of colluding with foreign forces has been vaguely defined. It argues that the new law could well mean an end to holding placards, banners, activities of academics, Non-Governmental Organisations (NGOs) and the Media coverage all of which could be termed illegal or outlawed.
The HKBA in a statement and analysis of the law has disclosed that no one in Hong Kong has been allowed to see the law, draft or accurate summary of the NSL before it came into force. It further pointed out that the copies published thereafter have all been in Chinese rendering it inaccessible to many of the stakeholders.
According to HKBA, Hong Kong Chief Executive Carrie Lam Cheng Yuetngor (better known as Carrie Lam) is reported to have claimed that she too was in the dark about the law until yesterday (June 30). The HKBA argued that the Chief Executive was unable to disclose the contents of the law after it was passed. It argues that the new law effectively ends the concept of “One Country, Two systems” that was guaranteed in the Sino-British Joint Declaration of 1984-85 and the transfer of Hong Kong to China on July 1, 1997.
Predictably the new law has raised the hackles of the United Kingdom, the former colonial power in Hong Kong, the United States of America and in Taiwan. Many of the protestors had lobbied with the US Congress for sanctions to be imposed on China. US President Donald J Trump has already begun eliminating policy exemptions that give Hong Kong special treatment.
