Foreign nationals and Hong Kongers could face the same legal exposure to prosecution under the national security law

After the Hong Kong police issued arrest warrant for five overseas Hong Kongers and one US citizen on July 31, the international community has been trying to understand the potential impact of the national security law on foreign nationals. In an interview, Dr. Julian Ku pointed out that based on the way that the Hong Kong government has been imposing the law in the city, it looks likely that they will be willing to sacrifice the city’s international reputation to strictly enforce the law, and if that’s the case, foreign nationals in Hong Kong will face certain level of risks.

Question: How possible will a non-Chinese national be arrested under the national security law?

Julian Ku: If someone is an American, and commits a crime while they were in Hong Kong, it’s not unusual for Hong Kong to prosecute that person, even though they are not a Hong Kong citizen. What makes the national security law unusual is that Hong Kong is purporting to apply, regulate and prosecute things that they do when they are not inside Hong Kong.

In those circumstances, countries will only go after people outside their territory if they are going after their own citizens. It’s considered very unusual or potentially a violation of international law to prosecute non-citizens for things they are doing outside their territories.

If the American government tries to prosecute someone who is not an American citizen and who lives in Hong Kong for something that they do in Hong Kong, that will be considered very unusual and controversial. That seems to be what’s happening here. They are applying their laws outside of Hong Kong to non-Hong Kong nationals.

Question: Some of the exiled Hong Kongers being served the arrest warrant view it more like a warning to all overseas Hong Kongers and their supporters. How serious do you think the Hong Kong government is about pursuing firm legal actions against these individuals?

Julian Ku: They can be both serious and still send out messages at the same time. The US government does this all the time. For example, a Russian hacker who interfered in the US election, the US government will first send a message saying “we know who you are.”

If they ever have the opportunity, they would definitely arrest these people and perhaps even put them on trial. I think what the Hong Kong government has done doesn’t just have to be “I’m only sending a message.” The Hong Kong government will probably want to send a message but the message will be much more powerful if they even actually prosecute someone.

I see no reason to think that they are just faking it and they just want to scare everyone, but they are never going to carry it out. They want to scare everyone and they will be more excited if they can actually arrest them because they can scare people even more.

Question: Is it possible that the extraterritorial nature of the national security law will become a major way for the Chinese government to put pressure on foreign governments?

Julian Ku: I think it is a tool for China to make demands on foreign countries, and on the other hand, the reaction from these countries is to resist these kinds of demands. Turning someone over is a much more dramatic step that requires the government to do something more.

I think China might discover that it’s actually harder to get countries to turnover people. Getting them to issue statements that are supportive of what China is doing in Hong Kong is different from getting them to turn people over.

Question: Other experts have suggested that some foreign nationals might have to start considering the consequences of passing through Hong Kong now that the national security law has come into effect. How likely do you think foreign nationals or exiled Hong Kong or Chinese dissidents will face such a threat?

Julian Ku: As a legal matter, there is no difference between a foreign national and a Hong Kong citizen under this law. The Hong Kong government can use this law to prosecute someone whether they are an American citizen or not.

There is the question of how much do you trust the Hong Kong government in exercising discretion and to limit the use of the law to just Hong Kong nationals or Chinese citizens. It then becomes a political question.

Do you think the Hong Kong government is willing to take the risk of prosecuting foreign nationals? I think the answer so far is they are, because it will be very effective for them to expand this.

It will have some chilling effect on forreign nationals. There is likely a list of people who are involved in Hong Kong politics, lobbying or human rights advocacy. There is no reason to think those people shouldn’t be worried just because they are foreign nationals.

Some people think the Hong Kong government will never do something to deter or scare off foreigners in Hong Kong, but what we saw so far with the national security law is that they are not kidding. They really want to use this law and they would rather take the cost of losing foreign government collaborations or international reputation if they can strictly enforce this law.

Question: After witnessing the sweeping power and jurisdiction of the national security law, what kind of impact do you think the law will have on Hong Kong’s existing judicial system?

Julian Ku: I think it’s too early to say whether judicial independence is gone completely in Hong Kong, because they still have judges in Hong Kong. They also haven’t ruled on any national security cases. We will want to see how these cases are adjudicated.

However, it’s fair to say that it doesn’t really matter if judicial independence continues to exist because the national security law limits the ability of the courts even if they are independent from interfering in the actions of the government.

Although the judicial system is under threat and its independence is probably weakened, what’s really unusual about the national security law is that it can sidestep the courts or limit the ability of the courts. So far, it is only in the concepts of the national security law, and none of the procedures for appointing judges has changed yet although there is talk about it.

Once we see judges being forced to retire or resign, that’s when we can say judicial independence is under serious threat. What we can say now is that the courts have essentially been sidelined, and the national security law allows the government to act without a lot of traditional supervision.

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