Beijing imposed its legal system onto Hong Kong through the national security law

After the Hong Kong government released the complete text of the national security law on Tuesday night, the world began to analyze the actual effect and impact of the highly controversial legislation. Eric Cheung from the University of Hong Kong’s Law School said he thinks the national security law not only doesn’t match with Hong Kong’s existing legal system, its power and jurisdiction even go beyond China’s own national security law, which poses an unprecedented level of threat to critics of the Chinese government around the world.

Question: Beijing revealed details of the national security law for Hong Kong late last night. What are some aspects of the law that you think will fundamentally change Hong Kong?

Eric Cheung: I think the first point that stood out to me is the way the new legislation was drafted. It was based on the PRC system of law rather than the common law concept and approach. China’s legal system is very different from our concept of rule of law.

The national security law also has a very wide-ranging extra-territorial effect, which even goes beyond what the PRC system normally allows. Under the criminal law in China, the territorial effect of the criminal offenses would only apply to Chinese nationals.

But if we look at Article 36 and Article 38 of the national security law, we can see that basically this new legislation can punish conducts which happened outside Hong Kong. Article 36 mandates that as long as the consequences of the acts happened in Hong Kong, then the new legislation will be applicable. Article 38 provides that even if you are not a Hong Kong permanent resident, if your acts or conducts outside Hong Kong amount to crime under the new legislation, the law will also be applicable.

If a possible suspect is always outside of Hong Kong, there is not much the Hong Kong or Beijing authorities can do. However, once the suspects set foot on Hong Kong’s land, including transiting, in theory, the suspects can be arrested and prosecuted under the new law. This is really alarming that the law even put people outside Hong Kong at risk of committing crime under the new legislation.

The third point is that there are various measures to limit the Hong Kong court’s jurisdiction over national security cases. Firstly, Article 60 of the law shows that the national security agency stationed in Hong Kong is not subject to the jurisdiction of courts in Hong Kong.

As long as they are satisfied that they are acting in accordance to the law, it will be ok since no one in Hong Kong can challenge them in the courts in Hong Kong. Another contradicting note is Article 47, which mandates that whenever Hong Kong courts need to try cases where certain conducts involve national security or national secrets, the Hong Kong court can’t determine the case based on Hong Kong’s usual procedure. The court needs to seek a certificate from the Chief Executive. The certificate will be binding on the Hong Kong court.

In other words, when the conduct in a case involves national security, Hong Kong court needs to follow the determination of the Chief Executive, which makes the role of the Hong Kong court in trying the case very limited. The court can only examine whether that person has committed a conduct, but whether the conduct matches with the offense will be determined by the chief executive.

The legislation also mandated that decisions made by the Hong Kong national security commission, which is headed by the chief executive, will not be subject to judicial review. All of these points go against the rule of law practiced in Hong Kong, because that means there is no effective check and balances against any abuse by the Chief Executive or the national security commission. The Hong Kong court is powerless, because they don’t have the jurisdiction to examine their conduct.

Additionally, the interpretation of the national security legislation rests with the NPCSC and the regional authorities, who have the final say on how to interpret the legislation. There is no check and balances against that. We can only trust our country.

Question: How much impact does the law have on Hong Kong from a legal perspective?

Eric Cheung: The law has fundamentally changed our understanding about rule of law in Hong Kong. We also need to understand that the PRC’s typical approach is to carve the law in really wide terms, but in actual practice, they may need to find some self-restraint depending on the political circumstances.

The pushback probably will be manifested in the actual execution of the legislation. This is the fundamental difference between rule of law and rule by law, because now, we can’t expect the law to provide clarity as to what conducts will violate the law. We also can’t rely on the law itself to restrain any signs of abuse of power by the authority. We can only trust that the authorities will exercise self-restraint, and they will not go to the extreme in carrying out the law.

Question: Many are worried that the legislation is enacted to enforce Beijing’s political agenda. How much political impact is this law going to have on Hong Kong?

Eric Cheung: What I can say is that the legislation is consistent with China’s own understanding of what constitutes national security. It traces back to 2015 when China passed its own national security law. The law made it clear that the traditional concept of national security is no longer sufficient to protect the authorities, so that’s why the original national security law was deemed insufficient to deal with the current situation.

Because of the new situation and new mission, Beijing had to pass a new piece of national security law, which embraced a much wider concept of what constitutes national security and in essence, the document explains that the key to national security is political stability. And that the key to political stability is the need to control any erosion of ideology.

The definition of national security in the 2015 law covers traditional and nontraditional concepts. It basically covers everything, from cultural, economic, environmental protection, and the internet. Essentially, they see the need to get all things under control, so they can prevent any destabilization of the political regime. Now, Beijing seems to have carried the new understanding and concept of national security to the extreme, covering people both inside and outside of Hong Kong. It covers the world at large, and that’s how the PRC now views national security.

This interview was first published in Mandarin on DW’s Chinese website.