What Hong Kong’s new security law means
Alvin Cheung spent July 1 scrambling to figure out how to safeguard his rights as a Canadian.
“Did not plan on spending Canada Day drafting an affidavit declaring that I am a Canadian citizen and would never renounce Canadian citizenship of my own free will, but here we are,” the legal expert wrote wryly on Facebook.
The focus of concern for the Hong Kong-born Cheung, who became a citizen of Canada as a child in1992, is the new security law the Chinese government has imposed on Hong Kong.
The law, which bans activities that Beijing deems to endanger its national security, has drawn widespread astonishment and condemnation from observers for the fact it purports to apply not just to the actions of everyone in Hong Kong, but to the actions of anyone outside the region, as well. Actions taken by individuals outside China are liable to be considered violations of this law, experts say. The maximum sentence for its long list of vaguely defined offences is life imprisonment.
Hong Kong’s first day under the new law saw more than 370 people arrested.
On Friday, Ottawa announced it will suspend Canada’s extradition treaty with Hong Kong and block sensitive military exports, while issuing a grim travel warning to Canadians.
“National security legislation for Hong Kong came into effect on July 1, 2020. You may be at increased risk of arbitrary detention on national security grounds and possible extradition to mainland China,” Global Affairs advised Canadians.
Cheung told the Star that international dual citizens of Chinese descent had already been more at risk, since Chinese authorities have coerced prisoners in the past to denounce their second citizenships to deny them consular assistance from foreign countries.
Now, with the sweeping national security legislation, there are myriad ways people of any background could find themselves “at the mercy of the black bag brigades,” said Cheung. Cheung, a former Hong Kong barrister, is now based in Ontario as a non-resident affiliated scholar of the U.S.-Asia Law Institute at New York University.
The Star contacted Canadian and international experts to answer questions about the national security law.
How can a law from the Chinese government apply to people around the world? Article 38 of the national security law says it applies to offences perpetrated “outside the (Hong Kong Special Administrative Region) by a person who is not a permanent resident of the Region.” The global reach is clear, and many international legal experts quickly sounded the alarm to advise people who ever said anything critical of Chinese or Hong Kong authorities to avoid travelling to greater China.
Cheung pointed out that people should also avoid boarding flights by Cathay Pacific and other vessels registered in Hong Kong, since the law also states it applies to those who commit crimes “aboard ships or aircraft registered in the Hong Kong Special Administrative Region.”
While Hong Kong previously boasted a highly professional common law justice system, the national security legislation emboldens Chinese authorities to force suspects arrested in Hong Kong to face trial on the mainland.
In 2019, mainland Chinese courts recorded a conviction rate of more than 99.9 per cent.
What precautions are people taking, given the national security law? The Canadian government has yet to provide detailed advice.
For Canadian activist Jody Chan of the Canadian solidarity group Alliance Canada Hong Kong (ACHK), the idea of visiting the greater China region is already out of the question for her. Now she is researching which countries in the world have extradition treaties with China or Hong Kong, to avoid booking flights with connections in those places.
“I would fear for my safety now even travelling to France or Italy, since they have extradition treaties with Hong Kong,” she told the Star.
In Hong Kong and elsewhere, others who have been outspoken in the past are scrubbing their social media histories and, on the eve of the law’s enactment, the leading Hong Kong pro-democracy group Demosisto disbanded out of safety concerns.
While the law does not specifically say it applies to activities or statements before July 1, Chinese authorities could “almost certainly find ways to frame conduct as a series of ongoing acts,” Cheung said.
For those with dual citizenship including Hong Kong Special Administrative Region citizenship, there are two options to explore: to officially declare a change of nationality and to apply to renounce Chinese nationality.
However, doing either would not guarantee that Chinese authorities would honour the foreign citizenship of someone of Chinese descent, Cheung warns.
And Chinese nationality law makes it much more difficult for someone born in mainland China to renounce their People’s Republic of China citizenship. Cheung advises consulting with a lawyer for advice, including on whether to prepare affidavits declaring that you will not renounce your Canadian or other citizenship.
What will international companies do to protect their employees? Organizations that have employees that must engage in potentially sensitive work, such as media, educational organizations and research and advisory firms, will likely seek legal advice on how the organization can achieve its aims without running afoul of the law.
Amy Sommers, a retired international lawyer who advised Fortune 500 companies in China, expects there will be an immediate reaction from many companies to pressure employees to conduct social media “audits” to delete potentially problematic posts and references.
“For purely domestic companies, they may claim they are doing something beneficial for their employees, but, for international companies, especially those with visible brands (and business interests in China or Hong Kong), adopting such an approach is likely to result in tremendous blowback for … chivvying its Hong Kong subsidiary employees to purge their social media accounts of demands for justice in Hong Kong,” Sommers said. “A lot of self-censorship and avoidance of potentially controversial areas is to be expected.”
What does this law mean for open dissent against the Chinese Communist Party in Canada? The law doesn’t just attempt to thrust a free-speech chill upon Hong Kong, which is home to 300,000 Canadian citizens, it also aims to stifle criticism about the Chinese Communist Party (CCP) outside of mainland China.
Cheuk Kwan of the Toronto Association for Democracy in China called the new law “ominous” and said it’s reminiscent of George Orwell’s book “Nineteen Eighty-Four,” the story of a dystopian future under a totalitarian government.
“China is now bullying its way through the world and thinking they can control everybody else and prosecute anyone who badmouths China,” Kwan said. “They are actually criminalizing the kind of free speech we enjoy in Canada.”
Kwan said “diehard” opponents of the CCP would not let the law stop them from speaking their minds online, but the average person of any background who travels to Hong Kong often may think twice before posting criticism of Beijing on social media.
He said those who have been vocally critical of the CCP may avoid simply transiting through Hong Kong if they feel they have a target on their back.
Kwan said, “nobody is safe,” including those holding Canadian passports who are not Hong Kong residents.
“We are resigned to the fact that, since about last year, we’re not going to be able to go back to Hong Kong anytime soon,” Kwan said. “And this cements the deal.”
Why is Canada suspending its extradition agreement with Hong Kong? One of the few Canadian lawyers to have practised law in China said Ottawa’s suspension of its extradition treaty with Hong Kong is a “no-brainer.”
Clive Ansley, who recently retired from law and now works as a consultant on legal issues related to China, said, under the new law, extraditing someone to Hong Kong would effectively be the same as extraditing them to mainland China.
“The reason we don’t have an extradition treaty with China,” Ansley said, “is because China has no legitimate legal system and no legal process and practises torture, and all the other violations of the international covenant on civil and pollical rights. I certainly hope we wouldn’t contemplate sending anybody back to Hong Kong under an extradition treaty now.”
He said the law also raises questions about how easy it will be to send people from the region to mainland China to face trial, and which judges will oversee those trials.
Other questions about Canada’s reaction to the new law remain unanswered. This week, democracy advocates for Hong Kong asked the federal government to streamline the granting of asylum to those fearing arrest who want to flee the region.
Champagne’s statement Friday made no mention of any plans by Ottawa to do so, but Prime Minister Justin Trudeau said Canada would be looking at immigration issues related to Hong Kong in the coming weeks.
Other western countries, including Australia and the United Kingdom, have outlined support they will be granted to Hong Kong emigrés.
Are there any free resources to help people interpret the law? The non-profit website China Law Translate has published a bilingual translation of the law, and legal experts including Jerome Cohen have shared initial interpretations of the law.
“It’s very early days but, over time, I expect that we will see some organizations (perhaps more niche bar associations, law school professors working with alumni and students) devising guidance and perhaps offering services,” Sommers said.