What’s in Hong Kong’s New National-Security Law

Hong Kong police made their first arrests while enforcing the city’s extraordinary new national-security law hours after it took effect—even as legal experts scrambled to parse its full implications.

The law took immediate effect when it was published late Tuesday, the first time the full text—at roughly 10,000 characters spanning 66 articles—was publicly revealed. Experts say its provisions fundamentally alter the legal landscape in Hong Kong, carving out space within the city’s Western-style rule-of-law system for mainland Chinese methods of enforcing Communist Party control.

“All in all, this is a takeover of Hong Kong,” said Jerome Cohen, a veteran China legal scholar at New York University.

With help from legal experts, we dug through the law to better understand its implications for those who live, work and do business in Hong Kong. Here’s what we found:

Crimes and punishments

The new law lays out four categories of broadly defined offenses: secession, subversion, terrorism, and collusion with foreign or external forces to endanger national security.

Secession, as defined in the law, “can be committed with or without violence,” the Hong Kong Bar Association said in a statement expressing unease about the legislation. “This gives rise to concern whether this might operate to prohibit mere speech or any peaceful advocacy.”

The association also noted the law defines subversion as including activities deemed to cause “serious interference” or “obstruction” of the local government’s authority. “This gives rise to concern whether media criticisms or picketing might be caught under these provisions,” it said.

The law classifies as terrorism many of the actions carried out by aggressive front-line protesters in the past year, including arson, destruction of transportation facilities and physical violence. While Hong Kong’s own terrorism ordinance provides some exemptions for protests, advocacy, industrial action and other forms of dissent, the new law doesn’t.

Collusion with foreign or external forces to damage national security includes espionage activities—such as providing state secrets or intelligence—and working with foreign actors to conduct hostile acts toward Hong Kong and the whole of China.

All four categories of offenses are punishable with jail terms up to the maximum penalty of life imprisonment. Companies and organizations found to have committed offenses face fines, as well as the suspension or revocation of operating licenses and permits.

Beijing’s new powers in Hong Kong

Beijing will oversee national-security issues in Hong Kong through a new Office for Safeguarding National Security, a central-government agency. The law says the office’s personnel are immune from Hong Kong law when carrying out official duties, which include directly investigating major cases. Legal scholars say this allows the office to operate in Hong Kong with few legal restraints.

Exposure to mainland China’s justice system

The trigger for the mass protests in Hong Kong last year was a controversial bill that would have allowed people in Hong Kong who were accused of violating certain mainland Chinese laws to be extradited to the mainland. The new national-security law doesn’t enable extradition, but it does allow suspects to be tried in mainland courts for alleged crimes committed in Hong Kong.

China’s top prosecutorial agency and supreme court are empowered to designate mainland Chinese prosecutors and courts to handle certain major national-security cases from Hong Kong—thus allowing suspects to be sent to the mainland and be subjected to its opaque criminal justice system.

Squeezing speech

“The biggest chilling effect of this law will come from it criminalizing certain kinds of speech and action that were once permissible in Hong Kong and could be now considered a threat to national security,” says Jeremy Daum, a senior fellow at Yale Law School’s Paul Tsai China Center.

The law requires Hong Kong authorities to “strengthen supervision” and regulation over schools, universities, social organizations, the media and the internet. In Communist Party speak, calls to strengthen supervision often refer to the tightening of political controls.

It’s unclear what that supervision would entail for the city’s open internet. Legal experts say the law allows police to order individuals or companies to delete content, though it doesn’t appear to grant Hong Kong’s government the authority to block services altogether.

The law also calls for the new national-security office in Hong Kong and the Chinese Foreign Ministry’s local office in the city to “strengthen the management of and services for” a variety of foreign organizations, including international news agencies and nongovernmental groups.

The Foreign Ministry is the main agency overseeing foreign news organizations operating in mainland China, and issues press credentials to foreign journalists that are tied with their residence visas. Foreign reporters in Hong Kong aren’t currently subjected to such arrangements.

Lawyers have flagged uncertainties about the scope of collusion offenses, which cover the receipt of funding and support from foreign actors. Some worry this could be used to outlaw what have been routine cross-border interactions conducted by nonprofits, activists, academics and journalists.

The specter of state secrets

One of the law’s most worrying provisions for businesses and news organizations is the one that punishes the unlawful provision of state secrets to foreign or external actors.

The law is silent on what constitutes such secrets. Legal experts say Hong Kong authorities would likely refer to existing Chinese law, which offers an expansive definition of state secrets—an added risk for anyone who trades in information.

“‘State secrets’ are whatever the police choose to define them as,” said Mr. Cohen, the NYU legal scholar.

Legal experts point to the case of American geologist Xue Feng, who in 2010 was sentenced by a Chinese court to eight years in jail on charges of trading in state secrets, even though the information in question—related to locations of oil wells in China—hadn’t previously been considered sensitive. Such information is widely available for most energy-producing countries. The Chinese government classified such information as state secrets after Mr. Xue had acquired it in 2005.

First detained in 2007, Mr. Xue was released in 2015 following a reduction in his jail sentence.

Reach beyond borders

One of the law’s more surprising provisions, Article 38, says that even nonresidents living outside Hong Kong can be held liable for offenses committed outside the city. In other words, the law claims to apply everywhere.

Some legal experts warn the provision could be used to detain people who have irked Beijing should they enter Hong Kong. “If you’ve ever said anything that might offend the [People’s Republic of China] or Hong Kong authorities, stay out of Hong Kong,” Donald Clarke, a George Washington University professor who specializes in Chinese law, wrote on his blog.

Such claims to extraterritorial jurisdiction aren’t uncommon. The U.S. has made them on national-security grounds, notably in its efforts to prosecute WikiLeaks founder Julian Assange for espionage-related charges.

China’s criminal law claims jurisdiction over foreigners who commit crimes outside of the country against the Chinese state and its citizens. But its scope is limited to offenses that warrant at least three-year jail sentences, and are also punishable under local laws in the places where they occurred. Legal experts say the Hong Kong security law appears to assert a cross-border reach without those restrictions.

Diplomats say foreign governments that have extradition agreements with Hong Kong are likely to review the implications of the new security law, though many such pacts require the offenses to be punishable under the laws of both countries, and block extradition for political crimes.

“The new law is like a scarecrow,” one Western diplomat said of the legislation’s broad and often vague language. “Looks rough and ragged on the edges, so that it appears scary to people.”

Photo: Riot police secure an area during a demonstration against the new national-security law in Hong Kong, July 1. - PHOTO: ANTHONY KWAN/GETTY IMAGES

Link: https://www.wsj.com/articles/whats-in-hong-kongs-new-national-security-law-11593689730