China

Silence in Hong Kong: a Focused Purpose Achieved

Angus Forsyth responds to Martin Purbrick’s 6 July blog with an alternative view of the imposition of the National Security Law in Hong Kong. 

As everybody worldwide now knows, we in Hong Kong are now subject to a new Hong Kong Basic Law Schedule 2 Supplemental Enactment by the National People’s Congress of China to safeguard the national security of China (including of Hong Kong as an integral element of China).

In my view – and in the view of many legal commentators in Hong Kong, this new law is centrally focussed upon infringements against the national security of China, including Hong Kong as set out in its specific offence sections.

It is not intended to have, does not have and will not have the effect as widely and confidently stated worldwide of blowing down and exploding the entire concept of “One Country Two Systems” which was and is effectively created and protected and guarded by the Basic Law for Hong Kong which remains otherwise unaffected. 

In fact, Article 2 of the New Law expressly provides that human rights and rights and freedoms including freedoms of speech, of the press, of publication, of peaceful association, assembling, procession and demonstration enjoyed by residents of Hong Kong under the Basic Law and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong since before 1997 shall all be protected in accordance with the Basic Law.

This is a total and express endorsement of rights essentially emphasing continuation of the recognition of and protection of Human Rights in Hong Kong and certainly not available in China itself.

It is clear to me that all commentary upon the new law has completely and inexcusably omitted any reference at all to Article 2 and by doing so has also omitted the basic premise of express preservation of the One Country Two Systems policy of China under the Basic Law for Hong Kong which is extremely important in that Article 2 is not only a special re-iteration of the protections of the Hong Kong community and society under the Basic Law but is also a special exception for Hong Kong to the general law of China – a legal system which contains no such provisions.

 Article 3 further states clearly that a person is presumed innocent until convicted by a judicial body with the right to defend in judicial proceedings specifically protected.  Double jeopardy of trial or punishment for a second occasion is expressly excluded.

In general therefore, this topic has been of prime international interest and in the view of many in Hong Kong has been misinterpreted, misrepresented and ignorantly – often innocently – taken as a confirmation to suppress all the rights of Hong Kong residents under the Basic Law which are in fact expressly preserved.

This law has a specific focus of :-

“Secession of Hong Kong from China”; and

“Subversion” the overthrowing of the system of the PRC or its government or of the Hong Kong Government; and

“Terrorist Activities” defined to include a wide range of personal violence or sabotage of public facilities; and

“Collusion with a Foreign Country or with External Elements to Endanger the National Security of China”.

Each category provides for separate penalty for acts accessory to each of them.

These sections are broadly drafted with the intent to catch any activity which transgresses any of them and it is reasonably clear that the spreading by any person and in any way of any such activities including the possibility of advertisement in whatever form is quite definitely construable as an offence against the national security law and subject to its criminal sanctions.

From my position as a practising lawyer in Hong Kong over the last 49 years and with the intention to continuing to practise law in Hong Kong for the foreseeable future I cannot see myself as in any way affected by the new national security law.

As is well known, the circulation by whatever party (still certainly unknown to law abiding persons like me) of activities of any kind falling specifically within the categories identified above, but certainly including marches, placard design and holding, graffiti in public places and violence against the person of individuals or against public transport, electric power gas or other facilities including telecommunications or the internet would be committing an offence.

On the 6 July implementation rules for the new law were gazetted taking effect on 7 July.  These include email of Messages Endangering the National Security and Requesting for Assistance providing that if the Commissioner of Police has reasonable grounds to suspect that an electronic message published on an electronic platform is likely to constitute an offence or likely to cause the occurrence of an offence endangering national security then with the approval of the Secretary for Security he may authorise a designated police officer to request the message publisher, the platform service provider, posting service provider and network service provider :-

(i)      to remove the message;

(ii)     restrict or cease access by any person to the message; or

(iii)    restrict or cease access by any person to the platform or its relevant parts.

Failure of the publisher to cooperate immediately enables the police to apply to a magistrate for a warrant to seize the relevant electronic device and take any action for removing the offending information or alternatively a warrant to authorise the police to request the relevant service provider to provide the identification record or depiction assistance as required.

The same implementation regulations apply to the endangering of national security and interception of communications and in each case a warrant from a magistrate is an essential precondition to action.

There is a further obligation on the Hong Kong Government to promote national security education in schools and universities including (inter alia) the media and the internet.

It is worth setting the above out in some detail because I am not aware from keeping abreast of the worldwide coverage of the new national security law for Hong Kong in the United Kingdom, in Europe, in the United States, in Australia and also in regular periodical magazines such as Economist, that any consideration whatsoever has been given to these elements with the result that a glass half full is misleading and wrong.

Again, as a long time resident of Hong Kong I am perfectly satisfied myself that what we saw as “protesters” marching and raising questions about Hong Kong democracy and freedom over the last six months of 2019 would have been fully and absolutely acceptable had they continued, as they began, to be of a totally peaceful character.

However, they did not remain and continue of a totally peaceful character and became extremely violent extending to physical personal injury to members of the public in general some of whom were simply innocent and some of whom disagreed with what the “protesters” were seeking.

A construction worker had seen himself as standing up for justice when confronting protesters who were vandalizing a railway station.  He tried to stop black-clad protesters from smashing glass windows and damaging facilities at the local Mass Transit Rail station.  He got involved in a scuffle on a footbridge when hardcore protesters suddenly appeared and poured flammable liquid on him and then set him alight. 

He spent three months in hospital with burns over 40% of his body and in court last week in Hong Kong at the trial of two of the people accused of disorderly conduct in the leadup to the incident he informed the court that he was standing up for justice but, given what happened to him, he further informed the court that he was foolish and should have simply informed the police.  Apart from the two defendants on trial last week the culprits behind the fire attack and the lighting of the flammable liquid poured on the gentleman concerned have not been found.

Apart from this extremely vicious and fundamentally worldwide unreported incident two of Hong Kong’s leading universities were savaged by “protesters” including the Hong Kong Polytechnic University at which damage estimated at approximately HK$300,000,000 was caused through a one month occupation by “protesters” to the total exclusion of the entire university curriculum on campus.

However, what really inflamed the National People’s Congress in China was the constant chanting of the mantra that Hong Kong should be independent of China – something which I have always regarded and continue to regard as a completely impossible concept in any event.  This mantra is now to be a criminal offence not only because of the continued chanting of it by “protesters” but also as a direct consequence of the physical occupation and destruction of the Hong Kong Legislative Council Chamber and the ransacking of the Hong Kong China liaison office – something which absolutely stung the core of the Chinese Government to stimulate the counteraction which we have now seen in the passing of the national security law.

Since the passing of that law there has been silence which was basically the intended effect.

 

Angus Forsyth

 

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China, Hong Kong

As silence is imposed, freedom is a whisper in Hong Kong

6 July 2020

Martin Purbrick looks at the impact of the Safeguarding National Security law in Hong Kong

At 11.00pm on 30 June 2020, Hong Kong people were silenced by the Chinese Communist Party and the concept of One Country Two Systems ended.

At that time the new national “Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” was promulgated by Carrie Lam, the Chief Executive. The new law was implemented directly by the Central People’s Government, passed by the Standing Committee of the National People’s Congress (NPC), added to the Annexes of the Basic Law (the constitution of Hong Kong) as a national law to take effect in the Special Administrative Region, and then signed into effect by Carrie Lam.

The implementation was direct and without consultation with Hong Kong citizens. Even the government and business elite were not shown the text of the law in advance of it being approved by the NPC. This illustrated the feeling of the Central People’s Government that not only could the population of Hong Kong not be trusted to be loyal, but the governing elite could not be trusted to competently implement law and maintain order.  Jean Pierre Cabestan, political science professor of the Hong Kong Baptist University has said that “There was a mood among mainland officials that we needed a second handover of Hong Kong to China, and we’re moving toward that”, and that “I don’t think Beijing trusts the Hong Kong elites any more.” [1]

The Safeguarding National Security law takes effect 17 years after the government of Tung Chee Wah, then Chief Executive of Hong Kong, failed to pass a less harsh form of national security legislation and was eventually forced to resign after hundreds of thousands of Hong Kong people protested against the proposed law. The new Safeguarding National Security law is far more strict in its terms and severe in its punishments, with some deeply disturbing sections that undermine One Country Two Systems as well as established rights in Hong Kong.

Article 12 requires that a new Committee for Safeguarding National Security must be formed by the Hong Kong Government, but this is to be “under the supervision of and accountable to the Central People’s Government.” [2]  Luo Huining, director of the Liaison Office of the PRC, has been appointed as the National Security Advisor to the Central People’s Government on the Committee, chaired by the Chief Executive. This is another example of the Communist
Party of China senior representative in Hong Kong, Luo, being in a position of authority over the executive government.

Article 16 requires that the Hong Kong Police will create a new department for safeguarding national security, the head of which must be approved by the PRC office for safeguarding national security. “Qualified professionals and technical personnel” from outside Hong Kong may be recruited to provide assistance in safeguarding national security, which will lead to PRC intelligence and law enforcement staff being placed inside the Hong Kong Police. The Police have been given wide powers of search, confiscation of travel documents, restraining property, deleting published information, intercepting communications, and requiring people to answer questions (i.e. no right to silence), without needing authority from a Judge or Court.

There are new criminal offences of Secession (Article 20), Subversion (Article 22), Terrorist activities (Article 24), and Collusion with a foreign country or with external elements to endanger national security (Article 29).  These offences are not clearly defined and left vague enough for them to be applied based on widely varying circumstances. Life imprisonment can be given to persons found guilty of them.

The Central People’s Government will establish an Office for Safeguarding National Security (Article 48), whose staff will be from the Central People’s Government “national security authorities”. The new office has a wide remit to oversee Hong Kong efforts, to collect intelligence, and to handle complex cases involving foreign countries or serious situations. Most worryingly, such cases will be prosecuted in mainland China (although there is no mention of what legal power will be used to transfer suspects). The staff of the Office will not be subject to any checks by Hong Kong law enforcement and have immunity to local laws.

The leaders of the new Office for Safeguarding National Security indicate what approach this organisation is likely to take. The new head of the Office is Zheng Yanxiong, with Li Jiangzhou and Sun Qingye appointed as deputy heads of the office. [3]  Zheng is best known for his work leading a crackdown on the villagers of Wukan in Guangdong Province in 2011, and his last post is as secretary general of the Guangdong branch of the Chinese Communist Party. [4]  Li Jiangzhou, one of the deputies in the Office, is a senior official of the Ministry of Public Security, experienced working with the Hong Kong Police from the Liaison Office,
who reportedly was previously head of the 1st Bureau, known for domestic security and the pursuit of dissidents, terrorists, and subversives. [5]  Sun Qingye, the other deputy, is believed to be an officer from the Ministry of State Security, which engages in espionage, counter intelligence, and political security. [6]

Taken together, the leadership group of the Office for Safeguarding National Security has experience of Communist Party discipline (Zheng), political policing (Li), and political intelligence (Sun). This suggests the most likely structure of the Office and their priorities.

The content of the law has shocked many Hong Kong people into silence and is likely to inhibit protests against the Hong Kong or Central People’s Governments. The silencing of dissent was swift. Joshua Wong, Agnes Chow, and Nathan Law, the leading members of Demosisto, a pro-democracy youth activist group, resigned from their party positions and the group disbanded. Nathan Law fled from Hong Kong before the law came into effect as he feared that he would be prosecuted for testifying before the US Congress in relation to the situation in Hong Kong. There are many reports of Hong Kong people deleting their social
media histories on Twitter, WhatsApp, and Telegram, and many switching to Signal (which is reportedly more secure).

Fear is the intended outcome of the Safeguarding National Security law. Steve Tsang, director of the China Institute at London’s School of Oriental and African Studies, said that the law is “a bloodless version” of China’s 1989 Tiananmen Square massacre, and that the objective is to intimidate and terrify the people so that people don’t even think about protesting again, hence avoiding a repeat of the 2019 pro-democracy protests. [7]

But on 1 July 2020, the first day of the Safeguarding National Security law, despite the refusal of the police to give permission for the long-held protest on the 1 July public holiday, “the Hong Kong Special Administrative Region Establishment Day”, a few thousand people protested on the streets and in shopping malls.

The Hong Kong Police said on Twitter that “Around 370 arrests, including 10 (6M & 4F) for breaching #National Security Law, have been made today. A total of 7 officers were injured on duty. Among the serious injuries, one was stabbed by a rioter with a dagger and three were hit by a rioter driving a motorcylce” (sic).

A police officer was stabbed in the shoulder when he ran alone to chase fleeing protesters. That is a crime and the person who stabbed the young officer should be charged with wounding if he is identified and arrested.  It is certainly not, however, “terrorism”, which is what the Hong Kong Police have been labelling some actions by protesters. A protester who rode his motorcycle through a group of police officers has been arrested for “Terrorism” under the National Security law. The motorcycle was flying a flag with the words “Liberate Hong Kong Revolution of our Times”, a popular protest slogan that the Hong Kong Government said on 2 July is illegal to state openly, as it refers to secession and is hence an offence under the National Security law.

To reiterate how people break the law by dissenting, the Hong Kong Police used new flags which state “This is a police warning. You are displaying flags or banners / chanting slogans / or conducting yourself with an intent such as secession or subversion, which may constitute offences under the “HKSAR National Security Law”. You may be arrested and prosecuted.”  Hence the intent of the National Security law is made clear.

The creativity of Hong Kong people was shown on 1 July, the first day of enforcement of the National Security law.  The Hong Kong Police proudly announced on their Twitter feed that “A man was arrested for holding a Hong Kong Independence flag in Causeway Bay, Hong Kong, violating the National Security Law. This is the first arrest made since the law came into force.”  What the Police did not say (or realise) was that the flag had the word “No” in tiny letters written before “Hong Kong Independence”.

Other people protesting sought to avoid being accused by the Police of the offence of Secession by holding blank sheets of white paper in the air whilst protesting .

Several restaurants that were part of the “Yellow Economy”, referring to the colour associated with the protest movement and the shops that support it, have taken down yellow post-it notes that had pro-democracy and anti-government messages and replaced them with blank notes.

The blank post-it notes summarise the situation that Hong Kong people find themselves in. They can think for themselves, they can dream, but they cannot speak out their views. The Safeguarding National Security law has the effect of silencing a vibrant civil society in Hong Kong that could contribute to the development of China. This is clearly not desirable to the hard-liners of the Chinese Communist Party who dominate policies at the moment. The appointment of PRC officials such as Luo Huining, Zheng Yanxiong, with Li Jiangzhou and Sun Qingye, is indicative of the hard line approach from the administration of Xi Jinping. These are not the pragmatic officials in the mould of Zhou Zhiyang, Wen Jiabao, and Zhu Rongji who led the political and economic opening up of China from the 1980s.

The law is intended to strike fear into people so that they do not protest, and to set an example for others that dissent is futile.  As silence is imposed by the Chinese Communist Party, Hong Kong people must whisper their freedom as they wait patiently for the liberalisation of China that many of us hope will come.

Martin Purbrick

[1] New York Times, In seizing control, China sidelines its allies in Hong Kong, 20 June 2020 ( https://www.nytimes.com/2020/06/27/world/asia/china-hong-kong.html )

[2] The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, Chapter II, Part 2, Governing Bodies, Article 12.

[3] Xinhua, State Council appoints officials for central gov’t national security office in HKSAR, 3 July 2020 ( http://www.xinhuanet.com/english/2020-07/03/c_139185578.htm )

[4] South China Morning Post, National security law: Beijing appoints tough-talking party official Zheng Yanxiong to lead powerful new agency in Hong Kong, 3 July 2020 ( https://www.scmp.com/news/hong-kong/politics/article/3091664/beijings-top-hong-kong-official-luo-huining-will-be-city )

[5] Matthew Brazil, Hong Kong: Chinese security officials arrive, 4 July 2020 ( https://www.linkedin.com/pulse/hong-kong-chinese-security-officials-arrive-matt-brazil/?trackingId=Q%2FuH656KrcL6WIcQrIrHpQ%3D%3D )

[6] Ibid.

[7] The Atlantic, Hong Kong is a colony once more, 1 July 2020 ( https://www.theatlantic.com/international/archive/2020/07/hong-kong-china-national-security-colony/613711/ )

 

 

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