What we know we don’t know

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Article 18 of Hong Kong’s Basic Law gives China’s central government the authority to declare a state of emergency and to implement mainland laws in Hong Kong. This is the extreme option that would necessarily merge the ‘two systems’ at least in part. Despite months of sometimes violent protests, China is not invoking this authority to push forward its forthcoming Hong Kong National Security legislation.

We know this, however, because Chinese state media’s most comprehensive overview of the upcoming law to date ominously reminds us that the option is there. The law’s proposed expansions of central government security forces and jurisdiction in Hong Kong, it says, are to ‘prevent the occurrence’ of just such an emergency situation. The carving knife is placed conspicuously on the tea table, with an awkward chuckle and a ‘glad we won’t be needing that.’

Chinese law can be hard enough to understand when one has the full text and it’s foolhardy to analyze what one hasn’t, but the overview and interpretation available do provide significant insight, both into what we know and what remains to be seen. Most of what has been revealed thus far concerns the relationship between the central and Hong Kong government authorities in regard to national security work. This will include new central government oversight authority as well as new obligations for Hong Kong. There are also broad assurances throughout that there will remain ‘two systems’, but the position of those systems in relation to each other is clearly shifting.

The central government is to create an Office for the Preservation of National Security in Hong Kong, responsible for assessing the local security climate and guiding Hong Kong’s national security efforts through information sharing and coordination. The Hong Kong government counterpart of this new Office is to be a new National Security Commission, chaired by Hong Kong’s Chief executive, answering to the central government, and with a central government adviser and secretary-general approved by the central government. The fear is that they will be working less hand-in-hand, and more literally, hand-in-glove.

Close cooperation and coordination could be essential for addressing threats that are common to the whole nation, but the law seems primarily focused on shutting down the threat that a restless Hong Kong poses to the Mainland. This can be seen in the requirement that all those seeking or taking office in Hong Kong swear allegiance to the “Hong Kong Special Administrative Region of the P.R.C.”, or maybe more directly in singling out schools and social organizations for further government monitoring.

As a counterbalance, the summary is peppered with broad assurances that national security actions will be restrained in Hong Kong. Rights, such as to speech, press, association, and even demonstration are to be protected. The presumption of innocence is preserved, double-jeopardy forbidden, and defense rights protected. Central government authorities will follow Hong Kong laws, and only prosecute for conduct clearly criminalized by law, and the Hong Kong authorities will retain jurisdiction over almost all cases, except in certain specified situations.

And this is where the unknowns come in. We hear little about what cases are taken out of Hong Kong’s jurisdiction and how. We know that the crimes to be considered in the law are limited to secession, subversion of state power, terrorism, and colluding with foreign powers to endanger national security. We know that Chapter III of the law is entitled “Crimes and Punishments” and contains 6 separate sections explaining the different situations that will constitute these offenses and provide for their punishment, but can’t see those explanations. We know that even in cases handled by the Hong Kong authorities, specially designated law enforcement, prosecutors, and judges will handle cases of national security crimes, and that the government will have powers beyond those in other criminal cases, but we have no idea what that looks like in practice.

Perhaps the reason that much of this hasn’t yet been released yet, is that it is still being debated and revised. China is walking an impossible line with this law, working to restore stability and control, but knowing that release of the law itself could cause renewed unrest. The assurances of rights and local autonomy show recognition that at least lip service be played to these ends, and hopefully, the idea that perceptions of legitimacy brings the most stability might guide the drafting. The lack of public information on the law, however, is a step in the wrong direction.

About Jeremy Daum 104 Articles
Jeremy Daum is Alex Daum's dad, Elizabeth Jenkins' Partner, China Law Translate's contributing founder, and a Senior. Fellow at Yale Law School's Paul Tsai China Center. He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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