The sweeping powers granted to the new mainland China agency overseeing national security in Hong Kong that enable it to operate independently of local authorities and send arrestees over the border deal a serious blow to the city’s freedoms, scholars and lawyers have warned.
The Office for Safeguarding National Security of the Central People’s Government being set up in the city has been given vastly greater powers than expected, ranging from collecting intelligence, to handling cases and strengthening management of international non-government organisations and news agencies.
The new law detailed in six chapters, comprising 66 articles, was released late on Tuesday night only after it became effective in the city. The legislation was passed by Beijing’s top legislative body earlier that day.
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One of the six chapters lays out the power and duties of the new mainland China agency, which will be funded by the central government, with staff coming from relevant national security authorities.
The office will assess the city’s national security developments and make proposals on major strategies and policies. It is also tasked with collecting and analysing intelligence, as well as handling cases concerning national security.
Mainland Chinese national security officers will be part of Beijing’s new agency in the city, the Office for Safeguarding National Security, whose staff will have to observe local laws but will not be under Hong Kong jurisdiction while carrying out their duties.
The officers and the vehicles used while carrying out their duties are not subject to checks or scrutiny of Hong Kong’s law enforcement agencies. The law specifies all departments of the local administration must “provide necessary facilitation and support” to the new mainland China agency or risk being held accountable.
Hong Kong national security law full text:
Beijing can exercise jurisdiction over cases involving “complicated situations” of interference by foreign forces; ones in which the local government cannot effectively enforce the law and those where national security is under “serious and realistic threats”. In these circumstances, the agency can exercise direct jurisdiction upon approval by the central government.
Suspects can be extradited to mainland China, with state prosecutors handling the cases and the Supreme People’s Court assigning courts to hear them. According to Article 59 of the law, any person who has information in relation to such cases is obliged to testify truthfully, a deviation from the right to remain silent as safeguarded under the common law system practised in Hong Kong.
Zhang Xiaoming, deputy director of the State Council’s Hong Kong and Macau Affairs Office, said the law deliberately made the work of the mainland Chinese agency and its agents free from regulation by “the administrative, legislative and judicial bodies of the Hong Kong government”.
“That’s necessary to ensure the office may fulfil its duties, as the power exercised by the office is beyond the autonomy of the Hong Kong government … and many of the cases it may handle would involve state secrets,” Zhang said. He also argued the arrangement was to ensure good division of labour and that mainland Chinese and Hong Kong law enforcement supplemented each other.
Zhang said the agency was not regulated under Article 22 of the Basic Law, the city’s mini-constitution, which bars mainland Chinese departments from interfering in the city’s affairs.
But Eric Cheung Tat-ming, principal scholar at University of Hong Kong’s faculty of law, and Ling Bing, professor of Chinese law at Sydney University, both warned the sweeping power granted to the office with no checks and balances posed a serious threat to the city’s freedoms.
“Our system has always put public powers under check and balance,” Cheung said. “But now, the agents could collect intelligence, intercept communications and make arrests without any regulations from the government. We could only believe they would abide by the local laws.”
Citing the case of Chinese billionaire Xiao Jianhua who vanished from a luxury Hong Kong hotel over the 2017 Lunar New Year break and ended up on mainland China, where he is reportedly awaiting trial on corruption charges, Cheung believed agents would now openly escort suspects over the border, with local courts unable to safeguard their rights.
Although Article 4 protects human rights and the freedom of speech, assembly and publication, Ling warned the lack of any restraint on the new agency meant the law would still impinge on those guarantees.
“There is a lack of a monitoring mechanism over the unprecedented power given to the national agency. Such threats … have gone beyond the law itself,” Ling said.
Another source of concern is the agency’s duty to take necessary measures to supervise international organisations – including non-governmental groups and news agencies.
“Hong Kong is known as a freewheeling international city where a substantial number of foreign news organisations and NGOs are stationed,” said Professor Fu Hualing, law dean at the University of Hong Kong. “The provision may adversely affect Hong Kong’s status as an international city as some foreign organisations may no longer find the city as attractive as in the past.”
Chow Hang-tung, vice-chairwoman of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, also expressed fears the mainland’s tight control over NGOs would be replicated in the city, from registration, financial control to a requirement over the handing of any information.
Chow, a barrister familiar with rights cases in mainland China, noted the Criminal Procedure Law of the People’s Republic of China would be applied to cases in which Beijing retained jurisdiction, under Article 57 of the law.
“It means arrestees could be sent for detention for up to six months, with no rights to see lawyers or family members,” Chow said. “In the mainland, that opens the windows for agents to exercise torture.”
In Beijing, Zhang was asked whether the application of the Criminal Procedure Law meant death penalties would be applied in such cases, but he did not respond.
Chow believed the death penalty would not be applicable, as the mainland Chinese law applied to “procedural matters” as stated in the national security law.
Additional reporting by Gary Cheung
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This article Mainland Chinese office overseeing national security in Hong Kong ‘puts freedoms at risk’ first appeared on South China Morning Post