Now that it has arrived, Beijing’s much-feared national security law for Hong Kong heralds nothing less than imperialism with Chinese characteristics.
Imperialism need not always follow the classic British model of colonizing distant lands and peoples. No less typical in recent times is rule over groups with distinctive claims closer to home. But as China’s officials used to point out to the British, imperialism goes hand in fist with repression. With the new national security law, Beijing ironically doubles down on a disastrous model pioneered by Britain itself.
The key to this approach is the law’s adoption of a separate and draconian judicial system. In certain broad circumstances, an office of the mainland government in Hong Kong can now refer a case to mainland prosecutors and courts. Apparently, Hong Kong’s own common law courts are not up to dealing with security threats. But the real reason is to better intimidate a restive population. A favorite of imperial regimes and permanent emergency states, this tactic aims for easy convictions, jettisons fundamental due process protections and sweeps up legitimate political opposition.
The mainland judicial system China has introduced into Hong Kong could hardly be worse. China has only grown more authoritarian under President Xi Jinping. Beijing lacks — and even condemns — the most basic forms of constitutional limits, separation of powers, an independent judiciary, and the idea that the rule of law should constrain either the government or the Chinese Communist Party. In the classic phrase, it is a system that prizes rule by law rather than rule of law.
The results: the incarceration of more than 1 million Muslim Uighurs in Xinjiang; the crushing of dissent of any sort; incarceration, torture, trials with preordained results; and the brutal intimidation of lawyers who seek to defend those accused of amorphous laws.
But the true measure of the mainland’s neo-imperialism lies in the details of the new law. As a start, the national security offenses of secession, subversion and terrorism are vague, overbroad and malleable. An axiom of criminal law in systems that respect rights is that offenses should be precisely drawn. When not, they are open to the discretion and abuse of those bringing the charges — and have already been used this way in the mainland.
The law’s breadth gives lie to the idea that it will be used in only a “small minority” of illegal activities, as some local Hong Kong officials have argued. The numbers will be purely under the control of Beijing and its local minions. Nor does the “minority” necessarily have to be that “small” to effectively clamp down on all dissent. Beyond Hong Kong, the new law purports to extend to any person anywhere in the world who violates its provisions.
No less troubling is the law’s introduction of a security apparatus designed to be aggressive from top to bottom. Hong Kong will now have a national security committee headed by the Beijing-approved chief executive. That committee will oversee new special security units of the police and prosecutors. A new “Office for Safeguarding National Security” of the mainland government will also be on hand should Beijing’s imperial concerns not be addressed.
Which brings matters back to the last line of defense: an independent judiciary. The people of Hong Kong, accustomed to one of the best judicial systems in the world, now face prosecution and trial in one of the worst. Despite certain reforms, the problems with mainland judges remain legion: They are generally considered agents of the state and subservient to the party. This is a far cry from Hong Kong’s common law-educated judges, nominated by an independent commission — and augmented, at least in Hong Kong’s highest court, by a respected foreign common law jurist.
The list of dire effects of such a two-track system can go on, as could the list of international and domestic law violations that result. The new law violates Hong Kong’s “mini-constitution,” the Basic Law, which guarantees an independent judiciary and the projection of fundamental rights. China is also obligated to uphold these principles under the Sino-British Joint Declaration, the treaty that handed Hong Kong back to China, and the International Covenant on Civil and Political Rights, which it has signed, and which applies in full to Hong Kong.
Beijing’s enhanced version of imperial security all but obliterates the high degree of autonomy for Hong Kong it pledged for 50 years. Yet there may be some solace: With sustained pressure from within and without, even the most repressive colonial systems can eventually fall victim to their own lawlessness.
Martin S. Flaherty teaches human rights and Chinese politics at Princeton University and Fordham Law School.