China’s belligerence is evident yet again. This time it was Hong Kong that found itself in the receiving end of Chinese wrath. The world has witnessed the aggressive Chinese posture in South China Sea, on Taiwan, threats to Japan over Senkaku Islands, stand-off with India over the border, trade disputes with the United States and now the sweeping new National Security Law for Hong Kong that it passed on 30 June in haste.
In 116-pages of guidelines released on 6 July, China has expanded police surveillance and enforcement powers in Hong Kong. These form part of the new law targeting subversion, secession, terrorism and foreign collusion. This single legislative measure negates all the terms and conditions agreed upon during the 1997 handover agreement by Britain to China. What are the key powers granted to the authorities when conducting national security investigations? Police can now raid premises without a courtgranted warrant in “exceptional circumstances”.
The guidelines specifically states this would apply if it “would not be practicable to obtain” a warrant. The rules also apply to searches of vehicles or electronic devices. Police now have the power to remove online content, a move that accords unprecedented control over the Internet. If users or providers do not follow the police order, officers can apply to a magistrate for a warrant to seize the relevant electronic devices and take action to remove the message. Individuals who do not obey the order are liable to be fined up to $12,900 or jailed for up to a year.
Jail terms for service providers are capped at six months. The guidelines also spelt out provisions for asset seizures and travel restrictions. If someone is suspected of endangering national security, police can apply to a magistrate for a warrant ordering them to surrender their passport. The city’s security chief can also freeze any assets deemed to be related to an offence against national security, and the justice chief can apply to the courts to order the confiscation of property. There are conditions for foreign political organisations as well.
The city’s police chief can compel political groups or agents from abroad, including Taiwan, to hand over certain information, such as their activities, personal details, and details on their finances and sources of income. Those who fail to furnish could be fined HK $100,000 and six months in prison, or two years in prison if they give information which proves false. The city’s chief executive, a pro-Beijing appointee, will have final approval on all applications for interception of communications and covert surveillance operations to do with national security cases.
The National Security Law is open to interpretation, with overwhelming opinion saying that Beijing must respect Hong Kong court’s interpretation of the law. And this requires restraint to be exercised by the National People’s Congress in its power of interpretation. The real fear is that the new law like any other Chinese law is vague and open to manipulation through interpretation by the authorities. Hereafter, the Hong Kongers are going to face a real struggle to protect and fight for whatever autonomy is left with them.
Now that the new law has come into force, legal practionees need to carefully consider cases in accordance with existing legal practices and principles. The key challenge is that few Hong Kong lawyers have experience practising law on the mainland as admission and practice is strictly regulated and when questions of mainland law arise in Hong Kong litigation, like questions of foreign law, expert evidence of mainland law is required.
That is going to be a problem. The new legislation has been greeted with outrage around the world. The United States, Japan, France, the European Union, Australia and others have condemned Beijing’s move to end Hong Kong’s autonomy. Japan is even mulling cancellation of the Chinese President, Xi Jinping’s state visit to Japan altogether. It was scheduled for early April but postponed because of the Covid-19 pandemic. Australia-Japan-US Defense Ministers’ joint statement issued recently expressed deep concern over China’s imposition of the National Security Law in Hong Kong.
The imposition of a sweeping Chinese legislation on Hong Kong has unnerved Taiwan, deepening fears that Beijing will focus on capturing the island. China and Taiwan split in 1949 after nationalist forces lost a civil war to Mao Zedong’s communists, fleeing to the island which Beijing has since vowed to seize one day, by force if necessary. Taiwanese fear that Beijing has dishonoured the 1997 handover agreement according to which Beijing promised to leave Hong Kong’s status unchanged for 50 years.
Hence the fear that their island nation could be the next target. Beijing’s heavy-handedness on Hong Kong is a source of worry for Taiwan. worry. Over the years, China has used a blend of threats and inducements, including a promise that Taiwan could have the “one country, two system” model that governs Hong Kong, supposedly guaranteeing civil liberties and a degree of autonomy for 50 years after the city’s 1997 handover. Whatever little faith that Taiwanese political groupings had on Beijing’s outreach has been destroyed after the legislation on Hong Kong.
Beijing has stiffened its position on Taiwan since the 2016 election of President Tsai Ing-wen of the Democratic Progressive Party (DPP), ramping up military, economic and diplomatic pressure. Tsai views Taiwan as a de facto independent nation and not part of “one China”. But the pressure campaign has done little to endear Taiwan’s 23 million people. In January, Tsai won a second term with a historic landslide and polls consistently show a growing distrust of China.
A record 67 per cent are now selfidentified as “Taiwanese” instead of either Taiwanese-Chinese or Chinese ~ a 10 per cent increase on the year before ~ according to a routine poll conducted by the National Chengchi University. In 1992, that figure was just 18 per cent. Like Hong Kong, Taiwan has morphed from a brutal autocracy into one of Asia’s most progressive democracies. Younger Taiwanese tend to be especially wary of its huge authoritarian neighbour.
Therefore, Taiwanese support for the movement for democracy in Hong Kong is understandable. If China makes Taiwan its next target, it would not be surprising. However, if Beijing takes recourse to similar measures in Taiwan, it would have serious geopolitical consequences and the implications would be far-reaching.
(The writer is former Senior Fellow, IDSA, New Delhi)