Most controversially, the law gives Beijing the power to exercise jurisdiction over select criminal cases, raising the prospect that for the first time in Hong Kong’s history, suspects could be extradited across the border to face trial, and potentially prison time, in the mainland.
Fears of just that were what drove protests against an extradition bill last year that was proposed by the Hong Kong government. Those protests eventually forced the abandonment of that law, but spiraled into broader anti-government unrest that, Beijing says, required the imposition of the new national security regulations.
Writing on Twitter, he said the new law “effectively sets up a parallel judiciary (and) takes interpretation and final adjudication power away from Hong Kong courts.”
In a statement, the city’s chief executive, Carrie Lam, said the law would ensure “the long-term prosperity and stability of Hong Kong,” reiterated that it would “only target an extremely small minority of people” and said the proposed bill was “in line with the rule of law” and the “rights and freedoms which are applicable in Hong Kong under the Basic Law and relevant international covenants.”
When Hong Kong was handed over from British to Chinese rule in 1997, the city’s common law system remained largely intact. Precedent remained in force, and protections under the new de facto constitution, Basic Law, as well as various international treaties, guaranteed a degree of fairness and freedom not seen in China, where the conviction rate is north of 90%.
The new national security law would change all of that. According to details published over the weekend, Chinese security organs will have the power to “exercise jurisdiction” over national security cases “under specific circumstances,” while other prosecutions under the law will be heard by a panel of judges picked by the city’s Beijing-appointed leader.
It does not say explicitly whether suspects could face extradition to mainland China under such circumstances.
Though the draft did make reference to upholding the “rule of law” and various civil liberties, it also subordinates existing law to the national security bill, so that where there is a conflict, the national security law prevails. In practice, this could mean that when a national security prosecution contravenes human rights protected under Hong Kong law, those rights are suspended.
“The Handover has clearly become the Takeover,” Cohen added.
“It’s just whatever they say it is,” he added. “And if they cannot make it whatever they say it is when they want something, they will just change it in whatever way they like.”
Such provisions come amid a massive propaganda effort to sell the bill, with posters and adverts promoting it plastering Hong Kong, as well as an apparent push by Beijing for Chinese firms to re-list on the city’s stock exchange, boosting the local economy.
These judges are appointed by the chief executive, but their presence in certain cases has been controversial in China, leading to calls for their removal, or barring them from certain sensitive cases. By giving Lam the power to nominate judges to hear national security cases, the government essentially sidesteps this issue, enabling her to choose those judges deemed most loyal.
Expanding the power of Chinese courts and security services to Hong Kong carries with it even more concerns.
Permitting China’s security apparatus to operate in the city raises the specter of extralegal persecution. Dissidents and activists in China are often disappeared by the authorities or threatened with arrest around sensitive events, and many journalists and lawyers are dragged in to “take tea” with the security services, during which they receive thinly-veiled threats about the potential consequences of their work.
Giving Chinese courts jurisdiction “under specific circumstances,” meanwhile, will likely guarantee convictions in those cases. China’s legal system has been widely criticized for its lack of human rights protections, nakedly political prosecutions, and a nearly universal conviction rate. The country’s own national security law has been interpreted broadly in the past to imprison activists, intellectuals and journalists.
Similarly, Hong Kong guarantees rights under Basic Law and through being a signatory to international conventions, but the national security law as drafted would override these protections.