Sorting the security laws.

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There has been some confusion about how new national security legislation pushed through in Hong Kong (HKNSL) relates to mainland China’s National Security Law (NSL) and other legislation. A number of people have asked me to compare the two ‘National Security Laws’, but they are sufficiently different in character that a direct comparison might not make sense.

The Mainland National Security Law

China’s 2015 NSL reads less like a law meant for direct implementation than as a policy statement. It sets out a comprehensive national security perspective that guides and frames almost every aspect of China’s legal system.

In it, “national security” is broadly defined as:

[T]he relative absence of international or domestic threats to the state’s power to govern, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major national interests, and the ability to ensure a continued state of security.

The scope of national security is further elaborated to include:

  • Border defense [article 17]
  • Military modernization [article 18]
  • Financial stability and risk management [articles 19, 20]
  • Energy security and self-sufficiency [article 21]
  • Food supply security [article 22]
  • Cultural integrity [article 23]
  • Securing Capacity for innovation and advancement in key fields (IP generation, protection) [article 24]
  • Cybersecurity [article 25]
  • Maintaining ethnic unity [article 26]
  • Maintaining religious tranquility [article 27]
  • Social stability [article 29]
  • Public health [article 29]
  • Environmental protection [article 30]
  • Nuclear capability [article 31]
  • Space exploration [article 32]

Much could be written about the appropriateness of including many of these items in a conception of ‘national security’ and how China has sought to achieve security in these areas. They are only listed here, however, to show the breadth of concerns considered integral to national security in the NSL. As you might expect, the law itself also doesn’t go into great detail about what is to be done in these areas, except to identify them as national security concerns to be given more detailed attention in future legislation.

Foreign intelligence threats, the area most often associated with national security, were the subject of the previous version of the National Security Law which has been revised and renamed the Counter-Espionage Law.

The Hong Kong Law

By contrast, the Hong Kong National Security Law (Full Title: The P.R.C. Law on the Preservation of National Security in the Hong Kong Special Autonomous Region) is a very specific law, which shifts the relationship between the central mainland government and that of the HKSAR to crack down on unrest. Its main impact is to make it easier for China’s central government to act more directly in Hong Kong, and it accomplishes this both by creating mainland institutions in Hong Kong and by taking greater control of existing law enforcement structures in Hong Kong.

I have previously written about the specific new institutions and measures authorized by Hong Kong’s new law, emphasizing the split tracks it creates in Hong Kong criminal procedure. Most crimes continue to be investigated by the Hong Kong police and tried under Hong Kong Law, but the broadly defined crimes of Subversion of State Power, Terrorism, and Collusion with Foreign or Taiwan Forces, however, can now be addressed through either of two special tracks, which I labeled as ‘bad’ and ‘worse’

To briefly recap, in the ‘bad’ situation, special HK police forces with enhanced investigative powers handle cases in accordance with Hong Kong’s laws, under the oversight of central government authorities. In the ‘worse’ scenario, the central government takes a more direct role in investigating cases, and even applies mainland law over the investigation, trial, and sentencing. In practice, this has been said to involve sending suspects to the mainland. [Correction: A previous version suggested that this had already happened, but this has not been confirmed]

Mainland Criminal Law and National Security

Returning to the mainland, it’s important to note that the National Security Law is far from the only law touching on ‘national security’. In addition to laws like the Cybersecurity Lawthe Intelligence Law, and the Counter-terrorism law, there’s a whole chapter of crimes known as ‘crimes endangering national security’ in the Criminal Law. These crimes include those mentioned in the Hong Kong law, such as separatism, subversion of state power, and insurrection (Terrorism, interestingly, is a ‘crime endangering public safety’ rather than national security).

China’s Criminal Procedure Law is full of special provisions regarding ‘national security cases’ – meaning cases involving these crimes ‘endangering national security’. The law provides that in these cases lawyers can only meet with clients following special approval (article 39), RSDL (residential surveillance in a designated location – a form of detention outside of normal facilities) may be applied)(article 75), and notice of detention to the families of suspects can be waived (article 85). This is the criminal procedure that can now be applied under the ‘worse’ track of the HKNSL, along with other common problems in Chinese criminal procedure such as lengthy pre-trial detention.

While China’s criminal procedure has improved a lot in the last several decades, it might help frame things to know that the Criminal Law’s ‘crimes endangering national security’ were once known as ‘counter-revolutionary crimes’. The name and context have changed, but the concept is the same. These are crimes that pit you against the State. You are the enemy.

Jurisdiction

The HKNSL is a Hong Kong law, generally aimed at controlling Hong Kong. There has been some discussion about it creating new enforcement powers in the mainland, but I think this largely misses the main focus of the law, which is bringing the mainland criminal procedure to Hong Kong, not the other way around. Mainland law has long been applied expansively enough to reach the offenses covered in the HKNSL.

The HKNSL does expressly apply to crimes committed by non-residents outside of Hong Kong, including even purely speech crimes, aimed at encouraging separatism, terrorism, subversion and so forth inside Hong Kong. This is undeniably an expansion of jurisdiction and should be watched carefully. It goes even beyond similar language in the equivalent mainland law (Criminal Law article 8), which requires at least that the alleged conduct is also criminal where it occurred, although importantly, mainland law also takes jurisdiction over any crime where the ‘consequences’ occur in China (article 6), which may well be read to include all of these offenses.

I would suspect that the HKNSL’s extraterritorial jurisdiction was added primarily with the crime of ‘collusion with foreign forces’ in mind, attempting to ensure that the foreign half of that equation could also be pursued.

About Jeremy Daum 101 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.