Criticised China On Social Media? You May Be Arrested In Hong Kong

China’s new Nat Sec Law for Hong Kong has extra-territorial jurisdiction over every person on the planet.

Riot police cover themselves with shields as hundreds of protesters march along a downtown street during a pro-democracy protest against Beijings national security legislation in Hong Kong, Sunday, May 24, 2020.

(Photo: PTI/AP)

A controversial new national security law came into effect in Hong Kong on Tuesday, 30 June, which on paper applies to every person on the planet.

The law, imposed by China on the autonomous territory after bypassing the elected Hong Kong legislature, punishes secession, subversion, terrorism and collusion with foreign or external forces. China says this is necessary to bring stability to the territory after a year of pro-democracy protests.

WHY IS THIS A CONCERN

In addition to its vague and over-broad definitions of punishable offences, Article 38 of the new law says that it applies to offences committed outside Hong Kong, even by those who are not permanent residents of the region.

This unprecedented extra-territorial application of the law means that if an Indian citizen sitting in India says something overly critical of the Chinese government on Twitter (which can fall under the definition of subversion), they could be arrested if they ever travel to Hong Kong for a holiday/work trip.

CONTROVERSY OVER INTRODUCTION OF THE LAW

The new national security law (Nat Sec Law, for short), was introduced by the Chinese central government in Beijing in May 2020, confounding critics and leading to a fresh wave of protests.

While Hong Kong returned to Chinese control in 1997, it is supposed to be an autonomous territory under the ‘One Country, Two Systems’ principle, enshrined in what is called the Basic Law.

This is supposed to mean that the people of Hong Kong have freedom of speech and assembly, an independent judiciary and more of a say in their elected legislature. The Nat Sec Law is widely seen as a way to curb these freedoms and protections.

The Nat Sec Law has been rammed through by the Chinese central government using a technicality which allows it to pass laws applicable to the region and insert them into an Annex to the Basic Law. The text of the law was kept secret before it came into force, including from the Chief Executive of Hong Kong, Carrie Lam – a Beijing appointee.

RELEVANT DETAILS ABOUT THE NEW LAW

The four broad categories of offences under the law (and their aspects which could apply to people outside China/Hong Kong) are:

1. Secession – Any act meant to bring about the separation of Hong Kong from China, or alter its legal status. Incitement of such an act is punishable with up to ten years in prison.
2. Subversion – Organising, planning or participating in any unlawful acts to overthrow or undermine China, overthrow the central or Hong Kong government, or interfere/disrupt the work of the government. Incitement of such subversion is punishable with up to ten years in jail.
3. Terrorism – Acts of violence and sabotage against public servants or public property, and dangerous activities which jeopardise public health, with the objective of coercing the central Chinese or Hong Kong governments to further a political agenda. Advocacy or incitement of any such acts is punishable with up to ten years in prison.
4. Collusion With a Foreign Country/External Elements – This includes colluding with someone outside China/Hong Kong with the objective of provoking ‘hatred’ among Hong Kong residents towards the central Chinese or Hong Kong governments. Both the person within China and outside can be sentenced to life imprisonment.

Importantly, Beijing will decide how the law is to be interpreted, not the courts in Hong Kong. Trials can be held in secret without resorting to regular legal procedures in the autonomous territory, in some cases even sent over to mainland China.

After the law was passed, Joshua Wong, one of the most prominent faces of the pro-democracy movement in Hong Kong, put out a statement on Twitter in which he wrote that “From now on, Hong Kong enters a new era of reign of terror... With sweeping powers and ill-defined law the city will turn into a secret police state.” Wong and other pro-democracy activists have disbanded their organisations and fear bring arrested under the Nat Sec Law.

WHAT EXPERTS SAY ABOUT EXTRA-TERRITORIAL APPLICATION

Speaking to The Guardian, Eva Pils, a law professor at King’s College London who focuses on human rights in China, spoke of the dangers that the ambiguous wording of the law could lead to: “What is troubling is how broad and malleable their wording is. Under this law, could mere criticism of the central party state be treated as subversion or inciting subversion?”

The offences of subversion and collusion with a foreign/external source are vague enough to raise concerns that anyone who has criticised the Chinese or Hong Kong authorities could fall within their scope.

Donald Clarke, a law professor at George Washington University who follows legal developments in China, warns that” If you’ve ever said anything that might offend the PRC or Hong Kong authorities, stay out of Hong Kong.”

According to Clarke, the Hong Kong Nat Sec Law actually goes beyond the security laws in China, which only apply to foreigners if they commit an ‘offence’ in China, or some specific effect is demonstrated in China by their actions abroad.

He gives the example of a columnist in a US newspaper advocating Tibetan independence. If they travelled to Beijing, the law would have to be stretched beyond what it normally is, to arrest them. But if they land in Hong Kong, the new Nat Sec Law unambiguously allows them to be arrested and prosecuted. It could even be used to demand that people who travel to mainland China should be extradited to Hong Kong for trial.

Eric Cheung, a legal expert at the University of Hong Kong told the Financial Times that the law was far worse than he had expected. “The extra-territorial effect of this piece of legislation I think will really alarm all the foreigners and foreign investment and no one could now feel safe,” he said. He also warned that it wasn’t just those travelling to Hong Kong but even those transiting through its airport, who could be affected.

Under certain Indian criminal laws, people can be prosecuted for offences committed in India. If an Indian commits an offence which falls within the scope of Indian criminal law outside India, they can be tried in Indian courts, but not foreigners who do the same.

While this move doesn’t mean that everyone who says something critical about China will necessarily be arrested if they set foot in Hong Kong, it should be noted that China is not averse to using arrests of this sort to make a political point. Two Canadian nationals Michael Kovrig and Michael Spavor face criminal charges in China in response to the arrest of Huawei’s CFO in Canada, and her impending extradition to the USA.

This is something for Indians to think about in light of the current tensions between India and China, including the brutal attack on Indian soldiers in Galwan Valley, Ladakh.

Indians who may need to travel to Hong Kong might do well to follow the advice of Cheung, who has said that “all 8 billion people on Earth should closely study Hong Kong’s national security law” in case they get caught by the law and regret it (as reported by Quartz).