Hong Kong is no longer different from Shanghai after the imposition of the national security law
Hong Kong government introduced the guidelines for the enforcement of Article 43 of the National Security Law in Hong Kong, which experts view as further expanding the power that Hong Kong police enjoy while enforcing the law. Alvin Leong told DW that after the national security law comes into effect, Hong Kong is no longer different from Shanghai or Beijing.
DW: Hong Kong government revealed the new enforcement guidelines for Article 43 of the national security law last night. How do you assess the impact of the law on Hong Kong?
Alan Leong: The new guidelines have definitely increased Hong Kong police’s power to impose the national security law. You have to understand that the national security law and the so-called “guidelines” are not made by Hong Kong’s Legislative Council. Hong Kong has entered an age of rule by law. Since when is Hong Kong ruled in this way?
The guidelines are not passed by a proper legislative process. It is like an emperor issuing a decree so his subordinates will have to obey. This is the kind of situation that we are talking about. I just don’t know how Carrie Lam can put her hands on her heart and say these are not additional draconian powers.
From day one when we were in law school, we were told that “Our Home is Our Castle.” Without any judge handing the search warrant or things like that, police are not supposed to come into my home and search it. It seems that in the guideline, it’s not entirely clear that they must go to the court for a search warrant.
Also, Hong Kong has a scheme that’s overseen by high court judges for surveillance and interception of communication. It seems other than the new national security regime, it’s the Chief Executive who would be the authorizing power. My reading of the national security law and the guideline are that the commission chaired by the high court judge would not have the power to supervise such communications.
These are all new things and how can Carrie Lam say that there hasn’t been any additional draconian powers given to the police? I don’t agree with Carrie Lam’s claim that it didn’t give the police additional power.
Hong Kong after the national security law is almost indistinguishable from Shanghai. While theoretically the original legal institutions exist alongside the national security regime, it is up to the Chinese Communist Party to decide on when the national security regime will be engaged. Such a decision is arbitrary and cannot be judicially reviewed.
DW: With a law that’s overriding the functions and roles of the existing institutions in Hong Kong, what power do these institutions still have under the national security law?
Alan Leong: The role left for Hong Kong’s institutions to play will only be what’s allowed by Beijing. Whatever the emperor says you can do, then you can. If not, he will be calling the shot and he is dictating everything in the driver’s seat.
Hong Kong is now completely at the Chinese Communist Party’s mercy. The Sino-British Joint Declaration and the Basic Law no longer oblige the Chinese Communist Party to do anything. Through the national security law, the Chinese Communist Party is declaring to the world that it is not bound by any treaty or Basic Law provisions that it has promised Hong Kong people.
The political message is very clear. The rule of law as we know it is gone. How can a piece of legislation be passed without the Chief Executive even having a sight of it? The irony of it all is that the national security law is a regime that exists side by side with the original institutions that Hong Kong has, but that’s only theory.
Once this law is imposed, it overwhelms all existing institutions and systems that Hong Kong has. If you ask me whether Hong Kong is still governed by rule of law or is it ruled by law, then I think the answer is very obvious. This is no longer rule of law, but rather rule by law.
Question: What do you think foreign companies can do to cope with the challenges that come with the imposition of the new guidelines and the national security law?
Alvin Leong: Western companies who operate in Hong Kong are justifiably worried about the latest developments in the national security law.The original system is now overwhelmed by the national security regime so much so that the former can no longer afford to give foreign companies all the guarantees and protections they used to enjoy.
There are western companies operating in Beijing and Shanghai, and Hong Kong is now no different from these two cities. Foreign companies will know what decisions to make if they compare the challenges they could face in Hong Kong to that in Beijing or Shanghai. All I can say is that with the national security law in place, Hong Kong doesn’t afford any extra freedom and guarantee of protections that they don’t find in Shanghai or Beijing. They are now doing business at the pleasure of the Chinese Communist Party.
This interview was first published in Mandarin on DW’s Chinese website.