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Has Hong Kong’s national security law created secret police with Chinese characteristics?

Posted By on July 14, 2020 @ 06:00

The Hong Kong national security law [1] establishes two new agencies: an all-powerful and unaccountable secret police force targeting Hong Kong and a secret intelligence agency that’s explicitly beyond the law and which Hong Kong officials must unquestioningly obey.

The law makes any criticism of the government of Hong Kong, the People’s Republic of China and the Chinese Communist Party a criminal offence, and only the National People’s Congress (not any Hong Kong court) is empowered to interpret the law’s meaning. It is a completely unaccountable tool for arbitrary arrests at the whims of the CCP. Whether it is used that way will be a matter for the CCP, not for Hong Kong’s government or courts.

Unaccountable, unquestionable, all-powerful secret intelligence and police officers with their own prosecutors and courts and a mandate to investigate and make arrests for political crimes gives these agencies all the powers of the worst of the world’s secret police forces.

First, the national security law establishes the Committee for Safeguarding National Security in Hong Kong. The committee is constituted as a secret, unquestionable authority with its own police force, its own prosecutors and its own judges, all under the control of the central government in mainland China.

The committee is established explicitly under the direct supervision of the central government, and because it includes senior cabinet members and government officials, it tightens Beijing’s already considerable control over those individuals. The supervised members of the committee include Hong Kong’s chief executive and the cabinet secretaries for administration, finance, justice and security, along with senior bureaucrats including the director of the chief executive’s office, the police commissioner, the customs commissioner and immigration director. They are to be ‘advised’ on their duties by a Beijing-appointed national security adviser, a role that appears to now be the most powerful position in Hong Kong.

The committee is to have a permanent secretariat headed by a central government appointee. It is forbidden for anyone to interfere with or disclose any information about what the committee does. Its decisions are not subject to any review.

The committee will have its own private police force housed within the Hong Kong Police Force but run by a central government appointee and staffed in part by personnel from the mainland. The national security police are required to carry out tasks assigned to them by the committee, acting on instructions from its national security adviser. Cases will be prosecuted by a dedicated division housed inside the justice department but run by a central government appointee. The committee will hand-pick judges to hear its cases.

At the discretion of the justice secretary, trials can be held in secret, with only the final judgement required to be held in open court. Hand-picked judges are allowed to act in place of a jury. Any appeal against the justice secretary’s decision to hold a trial in secret or without a jury will be determined at the sole discretion of Hong Kong’s chief executive.

The committee has normal police powers as well as powers to prevent anyone from leaving Hong Kong, to require the removal of any online information, to monitor and interrogate people (explicitly including foreign political or government officials), and to intercept communications.

The national security law also establishes a secret intelligence agency, the Office for Safeguarding National Security in Hong Kong, to be staffed entirely by mainland officers who must be obeyed by the Hong Kong government but who are not themselves subject to Hong Kong law (or any law anywhere, as law professor Don Clark points out [2]). The office extends the jurisdiction of mainland national security laws, courts and criminal procedures to everyone, everywhere.

The office’s first task is to embed itself in the Hong Kong liaison office and foreign affairs bureau, the People’s Liberation Army’s Hong Kong garrison, and all other national security institutions in Hong Kong. It is expected to ensure that foreign non-government organisations and media are compliant.

The national security office is a central government agency and is expected to claim jurisdiction over matters that involve international sensitivities. When the office claims jurisdiction over a matter, all investigations, prosecutions and judicial processes will occur within mainland institutions according to mainland criminal procedures.

The office and its staff are explicitly beyond the jurisdiction of Hong Kong. An agency ID places a person beyond the law entirely while also compelling the obedience of any Hong Kong public official.

The national security law criminalises four types of acts: separatism, subversion, terrorism and collusion. In each case, encouraging or supporting a perpetrator (whether in kind or financially, directly or indirectly) is explicitly criminal.

Separatism offences include planning non-violent efforts to separate Hong Kong from the PRC. Providing any assistance to such an act is also an offence, with sentences of up to five years for minor matters, even if assistance is given without knowledge that it would be used for a separatist act.

Subversion offences include encouraging, planning, supporting or conducting any act that forcefully interferes with the Hong Kong government or central government or any facilities they use. Organising a protest outside the Legislative Council and blocking a train station, bus route or road are in this category.

Terrorist offences are limited to coercive acts that cause or are intended to cause grave social harm, though ‘grave social harm’ is to be interpreted by the standing committee of the National People’s Congress (as are all other articles in the law). Besides the usual descriptions of terrorism, sabotaging transport facilities is explicitly listed, presumably to include the damage done to train stations and roads by protestors. International media covering protests or interviewing protest advocates could be considered to have provided support to or incited terrorism.

Collusion offences include asking for or receiving any kind of help or instruction from a foreigner to disrupt any government policy. This could include any member of the Hong Kong or Taiwan diaspora communicating in support of protests. It includes provoking hatred towards the central government or Hong Kong government, which may include all the activities of opposition political parties or unsympathetic media organisations. It could potentially include any criticism of the Hong Kong government, the central government or the CCP anywhere in the world, or the sharing of an article that includes criticism of the Hong Kong government, central government or CCP.

The offences outlined under the national security law include serious crimes, but they also include political ones. Only the CCP is empowered to determine what constitutes a crime and such decisions are made in secret. There is no process of appeal and no mechanisms for accountability or transparency except to the CCP itself, and all decisions are final. The enforcers of these laws are themselves explicitly above the law and must be obeyed.

Just how dangerous the national security office and the national security police ultimately become to the people of Hong Kong depends on how they use their new powers. What they do have, though, is all the unrestrained authority and immunities of history’s most sinister secret police—if they choose to use them.

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URLs in this post:

[1] Hong Kong national security law: http://www.xinhuanet.com/english/2020-07/01/c_139178753.htm

[2] points out: https://thechinacollection.org/literal-lawlessness-hk-prc-officials/

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