Analysis of the Proposed Hong Kong National Security Law

By Jerome A. Cohen 

Here are some of my preliminary comments on the just-released Xinhua summary of the status of the proposed National Security Law. So far nothing has been released about whether there will be a consultation and comment period, even an abbreviated one, before the next NPCSC session. Nor has a date been announced for that next session, which may well be a special one in order to rush things through. These signs, like the failure to release the full text of the draft – 66 articles, suggest continuing uncertainty and disagreement in the leadership about how to handle the many delicate and difficult issues involved. Nothing has been said yet about sensitive questions such as extradition to the Mainland of the “very few” accused to be subjected to central justice. There are also many issues related to investigation in HK – invitations to tea, unrestrained surveillance in person and electronically, no privilege against self-incrimination during investigation, etc. How are the NSL crimes being defined? By what criteria will the CE select judges and why is this special system necessary? Although the Summary gives us some “eye candy” about human rights, the protections offered by Hong Kong law and the ICCPR, the very provisions in the draft NSL would appear to violate those protections. The Handover has clearly become the Takeover.

How Will the Prosecutions Against Michael Kovrig and Michael Spavor Unfold?

By Jerome A. Cohen 

Michael Spavor (L) and Michael Kovrig

After 557 consecutive days of incommunicado interrogation and incarceration, China has finally indicted two Canadians, Michael Kovrig and Michael Spavor, with varieties of espionage. The Globe and Mail has a good article on these terrible cases. The SCMP has also published an article on the charges. Both articles raise more questions than the PRC is prepared to answer, and these questions relate to today’s focus on the content of the forthcoming National Security Law for Hong Kong, especially the hot issue of foreign and external “collusion.”

One basic question is the extent to which the cases of the “two Michaels” are linked. Last year, China’s powerful Central Party Political-Legal Commission claimed that Spavor, the businessman, had provided intelligence to Kovrig, the International Crisis Group researcher. That might well be plausible since Kovrig would obviously want to be in contact with all sorts of people, particularly ones who knew a lot about North Korea and its relations with China. Yet their relationship does not appear to be an important part of either case, so far as we can tell. The two cases do not appear to be legally linked at this point. They are not being prosecuted together, the charges seem to be somewhat distinct so far as news accounts discern, and they are not even being prosecuted in the same city. Intriguingly, Spovar may be charged with sending secrets to the DPRK as well as Canada, which may be why his case is now based near the Korean border.

Yet it is obvious from the circumstances of their common connection to Sino-Canadian relations and the US attempt to extradite from Canada Huawei’s CFO, Ms. Meng, as well as from some PRC diplomatic statements and publicity, that the cases are politically linked to each other and to the extradition case. This is not simply the usual PRC practice of illegal arbitrary detention that violates both Chinese and international law but it is also a more extraordinary example of international “hostage diplomacy.” 

Of course, the two cases are both being legally processed in a similarly unfair fashion. Now that indictments have been handed down, the defendants are likely to finally have Party-approved lawyers appointed for them, not chosen by them. Until now, they reportedly have been denied the right to see any lawyer. Until the coronavirus pandemic, they did have monthly very brief visits from a Canadian consular official, but these have inevitably been of limited assistance since PRC rules ridiculously do not allow any discussion of the case that is the cause of the visit!

I strongly disagree with the statement by Gordon Houlden, a former Canadian diplomat quoted in the Globe and Mail article, to the effect that indictment makes it more difficult, but not impossible, for the Chinese leadership to intervene in the judicial process. In defense of the reputations of both the Party and the courts, I can confirm, from many personal experiences assisting in similar human rights cases in China, that the power of the Party over the courts never diminishes, even in the final stages of death penalty cases, as indeed the current Schellenberg case illustrates. In the infamous Gao Zhan case, for another example, the US State Department and the PRC Foreign Ministry quietly agreed that, immediately after her sentence to 10 years in prison, she would be released, allegedly for medical treatment in the US. Her husband and I waited an anxious 48 hours before the deal was carried out.

Schellenberg’s Chinese lawyer, Zhang Dongshuo, also quoted by the Globe and Mail, offers a more accurate version of how the two Canadian cases will secretly unfold, predicting that it “won’t proceed openly, there will be no observers and the verdict and case information won’t be made public.” Actually the verdict, in the sense of the court’s sentence, will very likely be made public, but the court’s opinion will be withheld, in order to deny observers insight into the judicial process and the facts. The future timelines of the cases and the fates of the two ill-fated hostages are still incredibly uncertain. Evidently, the current PRC leadership has no shame when it comes to human rights and international law.

The Changing Text of the Forthcoming National Security Law

By Jerome A. Cohen

As the Standing Committee of China’s National People’s Congress (NPCSC) begins this week’s three-day session, there has been significant commentary on the fate of Hong Kong and the impact of the anticipated new National Security Law. This Chinese language article from The Stand News points out what one or two journalists had already noted – that there has been a significant change in the language regarding foreign and external activity between the May 28th National People’s Congress Decision, which focused on punishment of foreign and external forces that interfere in Hong Kong, and the draft National Security Law that was just submitted for consideration by the NPCSC. The draft law reportedly focuses instead on those, presumably in Hong Kong, who “collude with” interfering foreign or external forces.

During the three-week interval, someone in the leadership or the drafting group saw the need to alter the scope and emphasis of this provision. Perhaps foreign criticisms and fears of prosecution played a role here. More likely, as Professor FU Hualing of Hong Kong University Law School reportedly has said, this change was made simply to make the forthcoming law compatible with the existing provisions of the PRC national criminal law. Nevertheless, when journalists today asked the NPC staff legal expert who met the press about the significance of this change, he  cautiously declined to answer and said that we will have to await the text of the actual statute in order to know the answer.

Use of the term “external” (境外 jìngwài) as an alternative to “foreign” is undoubtedly designed to embrace the activities of people from Taiwan and PRC nationals acting outside China. The Decision had stated “foreign and (和 hé) external forces,” which might technically have been misconstrued to mean they had to be in combination in order to be punishable. The draft cleans this up by stating “or” (或 huò) instead of “and.” One key question, of course, will be: what constitutes “collusion”? A second will be: what specific activities are to be covered by the ban on collusion?

It will be interesting, to say the least, to see whether the draft will be made available for public consultation and comment at the session’s close. Many observers suspect there will be a special meeting of the NPCSC in July to enact the NSL. In the interim, the PRC should benefit from a public consultation in many ways. Informed controversy will be more beneficial than continuing controversy based on progressive leaks and uninformed and inconsistent speculation.

Should the UN Increase Its Involvement in Hong Kong?

By Jerome A. Cohen

This is an excellent essay by Professor Yanghee Lee, former UN special rapporteur on Human Rights in Myanmar and former chair of the UN Committee on the Rights of the Child, on the dire situation in Hong Kong and the human rights violations that the new National Security Law may bring. It is wonderful to hear from a Korean expert on Hong Kong, especially one who has had such important relevant experience and has come up with a constructive proposal for trying to cope with the increasingly explosive situation. 

In the article, Professor Lee suggests that the United Nations could create either a special rapporteur or special envoy for human rights in Hong Kong. It would be excellent if the UN were to make some direct effort to improve the situation. The PRC claims that Hong Kong’s unrest is a matter of national security. However, it is also obviously a matter of international security, although the PRC vigorously resists this truth. Unfortunately, a PRC veto would frustrate any effort to invoke the concern of the UN Security Council. Eventually, the UN Working Group on Arbitrary Detention will confirm the PRC’s anticipated violations of the human rights of people victimized under the forthcoming NSL. But that plainly will be too little and too late, as it so often has been. What to do now?

Although a special rapporteur for HK would be splendid, Professor Lee, herself a former special rapporteur, maintains that this appointment would have to be approved by the UN Human Rights Council and may run into obstacles. Also, she does not explicitly discuss the politics of approval at a time when the US has withdrawn from the HRC, and the PRC wields prominent influence over the Council. Certainly, an attempt should be made to obtain HRC approval, if only to embarrass the PRC and many of the other oppressive governments that take part in the HRC.

The special envoy possibility is one that is rarely discussed outside expert circles and, although perhaps less immediately effective in informing public opinion, is surely worth trying. Here, Professor Lee points out, approval must come from the UN Secretary General. Of course, the PRC has a good deal of influence in the Secretary General’s Office, but so too does the US as well as the other liberal democracies. It would be good to hear the appraisal of political observers about the current constellation of pressures in that office. It is sobering for outsiders to note the ongoing international struggle for influence over the much-criticized WHO Secretary General, who is about to deliver a commencement speech at Tsinghua University in Beijing.

Is there no possibility that the Office of the UN High Commissioner for Human Rights can be of assistance? Under some administrators it has played an important and encouraging role. 

The UN is an area where an immediate Western response might be made without awaiting the public appearance of the draft National Security Law, if a draft is actually going to appear before the NSL is foisted upon HK’s fearful and divided population and the many foreigners who interact with it.  

Will China’s New National Security Law Lock Down Hong Kong?

By Jerome A. Cohen

I have just published a piece in The Diplomat, Will China’s New National Security Law Be the “Anti-Virus” Software that Locks Down Hong Kong?

Although national officials confidently liken the forthcoming law to “an anti-virus software” that will guarantee a new era for the SAR, every statement has created greater doubt. One critic dubbed the decision the “mother of all bombshells,” and there have already been grave concerns about the NSL’s legitimacy. The article analyzes the legislative, judicial, and law enforcement implications of this unfolding situation.

Further confusion around Hong Kong’s forthcoming National Security Law

By Jerome A. Cohen

On Monday, in a speech at a forum in Shenzhen, Deng Zhonghua, another deputy director of the Hong Kong and Macau Affairs Office (HKMAO) designated to speak out about the forthcoming legislation, claimed that the new law will give the Central Chinese Government itself jurisdiction to prosecute “a very small minority of cases involving very special circumstances” and that local HK authorities would be responsible for all other cases. This was a startling assertion of central authority that was quietly dropped from the official account of Deng’s speech. It seems that every confident statement issued by HKMAO officials about the forthcoming law’s content has only created more doubt, confusion, misunderstanding, fear and opposition. 

Following Deng’s statement and the consternation it created, Hong Kong’s Chief Executive, Carrie Lam, released a video reaffirming the relationship between Hong Kong and China. She restated for the umpteenth time the obvious fact that “Hong Kong is an inalienable part of the People’s Republic of China.”  She too emphasized that the new law “will only target an extremely small minority of illegal and criminal acts and activities,” but she failed to mention a key question - whether all such prosecutions would  be conducted in Hong Kong or whether the most serious would be prosecuted in the Mainland, i.e., not under the protections of Hong Kong’s common law constitutional system and the International Covenant on Civil and Political Rights.

Why is she releasing this statement now? Is it to counteract the confusing and damaging impact of Deng’s speech? Lam’s remarks – so general and abstract – simply rehash the standard argument and assurance. Has she even read the draft text of the law? Where is this draft text? It has not yet been listed for discussion at this week’s NPCSC session. Why not? Lam doesn’t seem to have a clue about the legal complexities and concerns stoked by all the “truth squads” that seem to be staggering under the weight of preparing the public for issuance of the draft. Remember what Mao said at the worst time of the GPCR? “All is chaos under Heaven. The situation is excellent.” 

Furthermore, although the draft text isn’t, at least yet, on the agenda for the current NPCSC session, its accelerated drafting was recently added to the NPCSC’s tasks. The drafters must be under enormous pressure to meet the leadership’s demand to churn out something acceptable “as fast as possible.” I recall what such pressure made Chinese Ministry of Finance officials feel like in 1980-81 when the leadership was calling for them to crank out tax legislation that would be acceptable to the U.S. Treasury Department so that US oil company taxes to China would be creditable against their US taxes. It was a stressful time for the bureaucracy. In the current case, the self-imposed urgent deadline of the leadership, although vague, seems much stricter because of the heightened international focus on this development. Not a great environment for the calm reflection required to answer adequately the many complex issues of international, constitutional and criminal law involved in the forthcoming legislation. 

What should we infer if there is a very last-minute listing, or lack thereof? Is the delay the result of an inability of the leadership to reach consensus on the law’s content?  Of course, a special session can be convened in ten days or so. Perhaps that would be a special treat to mark the Party’s 99th birthday on July 1. 

The upcoming national security law’s impact on democratic organizations in Hong Kong

By Jerome A. Cohen

As Hong Kong police broaden their attacks upon democratic organizations, they have notified a number of civic leaders to appear in court for “inciting” others to take part in unauthorized assemblies on June 4th. Ten are members of the Hong Kong Alliance.  

The situation for targeted Hong Kong civic groups is likely to soon become even worse, reaching all in the SAR who are deemed to “support” any such organizations if banned in Hong Kong or, if the organization is not yet banned in Hong Kong,  if it is regarded as having “supported” any organizations banned on the Mainland.

As I noted in an earlier blog, this is not some far-fetched law teacher’s nightmare but the enthusiastic elucidation of the former Hong Kong Director of Public Prosecutions, the formidable Grenville Cross. His recent article in the SCMP, a slight redo of the one he posted in CGTN, gives invaluable, detailed insight into how Hong Kong’s Director of Public Prosecutions may apply the new legislation after investigations by the newly-established offices of the PRC Ministry of Public Security and Ministry of State Security and their local police subordinates.  

Cross points out that anyone in Hong Kong who is deemed to “support” a banned organization may be snared as a criminal. In the CGTN essay he includes as possible criminal activity “support” for a HK organization that is somehow affiliated with a banned Mainland organization. Yet how are Mainland organizations banned? For what reasons? By what procedures, with what evidence and by whom? And how are these questions to be dealt with in Hong Kong? And what will be deemed sufficient “support”? Attending a meeting? A protest march convened by the organization? Payment of annual dues? And what about the contacts of Hong Kongers with foreign organizations? Hong Kong is now indeed the victim of a “political virus” that will cause a permanent lockdown!

Forecasting Hong Kong’s National Security Law

By Jerome A. Cohen

This article offers the most detailed forecast I have seen of the legislative process for the Hong Kong National Security Law that is currently underway in the Standing Committee of the National People’s Congress. The anticipated procedure is not the customary one since an emergency-type schedule is apparently to be pursued. If a public consultation is nevertheless to be conducted on the proposed draft or drafts, it apparently will occur on a foreshortened basis, with less time than usual for popular responses to be submitted and considered by the legislative drafters. This might, of course, diminish the desired propaganda impact of the public consultation.  

In the meantime, the PRC and the Hong Kong government are doing all they can to repress local democratic opposition to the legislation and mobilize and coerce support from officials and elites in business, education, media, legal and other sectors, despite the public’s lack of knowledge about the content of the legislation. The PRC is trying to propagate the belief that, since all countries need national security laws, those laws are all necessarily alike, so there is nothing to be worried about. 

Furthermore, it is not unduly cynical to believe that this rushed timeline is an effort to ensure that candidates for Hong Kong’s Legislative Council have declared their support of the law before the September election. In light of experience, it seems logical that this is the case. However, democratic candidates should be better prepared than they were in the past to protect against the possibility of moves to disqualify them. Certainly, they should not fall into the trap of grandstanding in ways that will lead to their elimination. How to do that while still making their true views clear may not be easy, but there is time to develop ingenious and effective responses in advance.

Of course, the threat of criminalizing previously tolerated speech will confront and affect all people in HK, presumably including foreigners. Will criminal prosecutions be brought against alleged offenders from the time the NPC Decision was adopted on May 28 or only from the date of the forthcoming legislation’s promulgation? Will it encompass pre-May 28 conduct? It remains to be seen whether the text of the legislation will mention ex post facto justice and any exceptions to be allowed to the universally admired principle against retroactive application of criminal laws.

The new legislation will undoubtedly raise a host of other thorny legal issues, including whether a special court will be established for relevant trials and whether its procedures will respect Hong Kong’s common law practices and laws and the provisions of the International Covenant on Civil and Political Rights that protect Hong Kong in accordance with the Sino-British Joint Declaration on Hong Kong. These issues will be discussed in subsequent blogs.

Admirable Advocate Martin Lee

By Jerome A. Cohen

I was asked by a journalist about Martin, and thought I should share what I know about this outstanding lawyer/advocate. 

Martin Lee

I have known Martin slightly and admired him hugely for decades as both a lawyer and public figure and have seen him on his recent visits to the US, often accompanied by Anson Chan and on the latest visit by Jimmy Lai. On his last visit to NY I invited him and Jimmy Lai to speak at the round table that I run at the Council on Foreign Relations concerning US Foreign Policy and the Rule of Law in Asia. Martin, even at 80, was a tiger. 

Here’s an anecdote about Martin that may be an instructive one today, given the current struggle over the Basic Law. Not long after the 1997 Handover, I was speaking at a business conference in Shanghai and, to my surprise, was invited by Hong Kong’s first Chief Executive, C.H. Tung, to have breakfast with him. I had only had one previous conversation with CH but we had a good mutual friend. CH is a likeable person and was a strong supporter of improving relations between the Council on Foreign Relations (CFR), where I then directed Asian studies, and Hong Kong. We both had been enthusiastic about the idea of setting up a CFR branch in Hong Kong but that idea didn’t make progress once, in our previous conversation, I told CH that CFR was open to people of different viewpoints and that Martin Lee would certainly be eligible for membership in a Hong Kong branch. CH made clear that the prospect of Martin’s membership diminished his enthusiasm for the proposal.

Despite that initial disappointment, at our Shanghai breakfast, I thought I would try out another useful idea on CH.

The Basic Law provides for a Basic Law Committee (BLC) to advise the Standing Committee of the National People’s Congress (NPCSC) on its responsibility for interpreting the Basic Law. Its twelve members, six from Hong Kong and six from the Mainland, include legal experts from both jurisdictions. It was unclear, however, what role the BLC was actually to play. One possibility was that it might have been developed into a serious public tribunal for recommending appropriate interpretations of the Basic Law to the NPCSC, following procedures analogous to those of the Judicial Committee of the Privy Council in the House of Lords that had been the highest authority for dealing with UK constitutional questions relating to Hong Kong while Hong Kong was a colony. The BLC might have established a practice of holding judicial-type hearings, preferably in public, at which varying aspects of the Basic Law issues in question might be adequately ventilated by legal and policy experts before the BLC made its recommendations to the NPCSC. Indeed, I suggested, a custom could even be established by the NPCSC whereby it accepted the BLC recommendations. Such an implementation of the Basic Law would maximize the confidence of Hong Kong’s people that the Basic Law would be properly interpreted and the Sino-British Joint Declaration properly carried out in accordance with the legitimate expectations generated by the language of those documents.

CH patiently heard my suggestion but then immediately responded: ”Ah, that would only give Martin Lee and his kind an opportunity to make more trouble.”

I was disappointed because it seemed evident that the key to the success of One Country, Two Systems would be the arrangements for faithful interpretation of the Joint Declaration and the Basic Law. The BLC could have become an important vehicle for building confidence that NPCSC decisions would not be merely the product of secret, political Beijing backrooms, but of a transparent, legitimate process that fulfilled the expectations generated by the Joint Declaration and the Basic Law. This is what is at stake as we await the results of the NPCSC deliberations that will determine the content of the forthcoming national security legislation for Hong Kong. Will the BLC even be consulted and at what stage of the process that has been going on for some time? Martin Lee, it should be noted, was not designated to be one of the Hong Kong members of the BLC. So much for troublemakers! 

Is Hong Kong Still Autonomous? The Implications of China’s New Legislation

By Jerome A. Cohen

I recently published an “expert brief” at the request of the Council on Foreign Relations, Is Hong Kong Still Autonomous? What to Know About China’s New Laws, that discusses the Decision recently approved by the National People’s Congress. The Decision aims to prevent, stop, and punish any acts in Hong Kong that “endanger” China’s national security. In addition to criminalizing these activities, the NPC Decision authorizes national security organs to set up institutions in Hong Kong, allowing agencies such as the Ministry of State Security and the Ministry of Public Security to operate freely.

The detailed legislation of the NPC Standing Committee that will soon follow will most likely dramatically alter life in Hong Kong. I anticipate that there will be an increase in mass arrests and freedom of expression will be curbed. The “high degree of autonomy” that Deng Xiaoping promised has collapsed, damaging the business community as well as social systems and the media. In response to the new measures, President Trump has announced that the United States will take steps to revoke Hong Kong’s special trade status and other arrangements, but the details remain to be seen. There has also been a vigorous response from the United Kingdom, and the EU has expressed “grave concern.” However, we must wait to see what steps will actually be taken in the coming months.

A disturbing report about a ”national security court” in Hong Kong

By Jerome A. Cohen

Here is a disturbing report that is more than imaginative speculation. Hong Kong’s Secretary for Justice is expanding the effort of Hong Kong elite to prepare local and world public opinion to accept a new and special ”national security court” in Hong Kong as part of the forthcoming NPCSC legislation.

The CCP makes do without one in the Mainland, of course, since the Party controls all courts there. But Hong Kong’s common law system presents distinct challenges that are apparently deemed to require a distinct response. Perhaps experts informed about the secret and widely-criticized operations of the United States Foreign Intelligence Surveillance Court should be asked to advise the NPCSC or, better yet, comment in public. The FISA court oversees requests from federal law enforcement and intelligence agencies for surveillance warrants to secretly monitor alleged foreign spies inside the United States.

Will the HK court operate as secretly and compliantly as the FISA court in approving electronic monitoring, search and seizure, arrest and other sanctions? And, if foreign judges are allowed to participate in such a distinctive and worrisome court, how will they be selected and in what circumstances will they function?

China, Hong Kong and June 4th

By Jerome A. Cohen

Today Hong Kong police, citing the need to enforce social-distancing rules, rejected permission for the annual June 4th vigil, for the first time in 30 years. In a governmental system where too little is transparent, one thing is transparent — the excuse for the June 4th ban is not credible. The Hong Kong Government and the Central Government plainly do not want to give Hong Kongers the opportunity to express themselves about either June 4th, 1989 or June 4th, 2020.

Will Hong Kongers be able to hold the vigil next year? A year is an eternity in politics, and predictions are hazardous. Yet, unless there is an unexpected change in leadership in Beijing, it surely seems likely, especially in light of the forthcoming legislation of the Standing Committee of the National People’s Congress (NPC) and the recent NPC Decision, that Hong Kong might follow Macao in succumbing to the Amnesia that has long been forced upon the Mainland.

Such amnesia is pernicious. Mankind lives by symbols, and they often invoke the supreme sacrifice of martyrs to admired causes and revered values. Just as the Chinese Communist Party has rung the changes on the “century of humiliation” that preceded its seizure of power, we should not forget one of the greatest tragedies of what will soon be the century of humiliation that the CCP has been inflicting upon freedoms of expression and protections against arbitrary punishments for one-fifth of humanity.

Of course, it is not appropriate for an arm-chair observer far away to tell the people of Hong Kong what to do in their crisis. Yet, if it were still a free society, I would say “Let a Hundred Flowers Bloom!” Being an optimist, I hope that those who choose to stay and the majority who cannot leave will, even at this stage, find a way to make an imaginative, record-breaking, totally peaceful protest against their impending fate.

I also hope that the city’s unofficial elite, who until now have been paralyzed like deer in the headlights, will finally come together with positive, concrete proposals that might begin to restore public confidence and consensus and delay or moderate the anticipated, feared legislation of the NPC Standing Committee.

The Party Central Political-Legal Affairs Commission’s comments on Hong Kong

By Jerome A. Cohen

Following the surprise public pledge of China’s Ministry of Public Security (MPS) to “fully direct and support Hong Kong police” to stop violence and chaos, which I commented on earlier in my blog, the Party Central Political-Legal Affairs Commission (Party PLC) announced that it’s very necessary for national security agencies to establish institutions in Hong Kong.

I was asked why the Party PLC makes a statement on Hong Kong. The Party PLC controls the MPS, the Ministry of State Security (MSS) and other government security agencies. Since the MPS has announced that it will “direct” the Hong Kong police, the Party PLC will in fact be indirectly directing the Hong Kong police, if it does not already do so.

The Central Party authorities undoubtedly also influence the Hong Kong Government in other respects, not only via the Central Government Liaison Office and the Ministry of Foreign Affairs Office in Hong Kong but also through less public and official channels, including Party channels.

This influence inevitably reaches the Department of Justice and its Director of Public Prosecutions, which is where the decisions are made to prosecute alleged offenders on the basis of evidence produced by the police. This evidence will soon openly include information produced by the national security agencies, which have until now been quietly cooperating with the Hong Kong police.

This in no way formally impinges upon the independence or jurisdiction of the Hong Kong courts. I have seen no evidence of Party infiltration of the Hong Kong courts or Hong Kong Government interference with the courts. Of course, there is need for further investigation and analysis of the meaning of “interference”. In every legal system, and that of Colonial Hong Kong was no exception as I know from personal experience dating from 1963, courts operate within their particular political, social and economic as well as legal contexts, and judges, individually and collectively, are not unaware of the local context or devoid of personal relationships and ambitions. In particular, it will be interesting to learn, if we can, whether MPS or MSS agents or, much more likely their intermediaries, will attempt to contact Hong Kong judges. Representatives of the security agencies are not likely to issue Hong Kong judges the “invitations to tea” so dreaded on the Mainland, but don’t rule out amiable dinners with mutual friends!  

China’s Ministry of Public Security to “fully direct and support Hong Kong police”

By Jerome A. Cohen

Here’s a statement on May 29 by the Ministry of Public Security (MPS) vowing to “fully direct and support Hong Kong police” to stop violence and chaos. The timing is fascinating. At a time when some pro-Beijing elite in Hong Kong are seeking to assure the public that the establishment of national security organs in Hong Kong has minimal significance and that their offices there will only play a modest, quiet role similar to that of the Ministry of Foreign Affairs office, why does the MPS make a statement that, at least in the minds of millions, will maximize anxiety about the forthcoming national security legislation by the National People’s Congress Standing Committee?

To be sure, other millions in Hong Kong may feel greater comfort at the prospect of the notoriously efficient MPS directing the Hong Kong police and thereby enhancing prospects for suppressing violence, vandalism and even peaceful mass protests, but they are not the ones raising international alarms in opposition to the forthcoming legislation.

At a time when the forthcoming legislation is being finalized, is this a move by the MPS to assert its preeminent role in controlling Hong Kong’s security, upstaging the Ministry of State Security (MSS) that the non-Mainland media often assumes will play a dominant role? The two major PRC secret police institutions often have had difficulties sorting out their respective responsibilities on the Mainland where foreign and HK elements are involved. Although generally receiving less media attention, the “guobao”, national security division, of the MPS has seemed ever present in restricting and punishing the human rights activists and lawyers I have been involved with over the years, not the MSS. But perhaps that is because the MSS usually operates more unobtrusively.

Can the people of Hong Kong gain comfort from this MPS announcement?

Thoughts on Meng Wanzhou’s extradition case and Chinese “justice”

By Jerome A. Cohen

The Canadian court has at last decided one important issue and will continue to hear others in the extradition case of Huawei’s Ms. Meng Wanzhou. The Canadian proceedings will go on for a long time. The trial court still has to consider several technical extradition questions. Then the appeal process will begin if the defense loses on those issues too, and there is also a serious issue about how long related Canadian government administrative measures will take, which will be a political football.

Despite continuing to live in the lap of Vancouver luxury, Ms. Meng ‘s business and personal life are undoubtedly significantly restricted, even though contemporary communications help to moderate these restrictions. But the real concern is that three Canadians (Michael Kovrig, Michael Spavor and Robert Lloyd Schellenberg) detained in harsh incommunicado conditions in China continue to be held as hostages to Ms. Meng’s legal fate. They must not be forgotten, especially the two who were arbitrarily detained following the commencement of the extradition proceedings. 

In passing, it is also useful to recall that the PRC, when it can, does not hesitate to resort to extradition against persons it claims have violated PRC criminal law. Many countries, however, still refuse to make extradition treaties with the PRC authorizing such proceedings because of their fear of PRC “justice”. That’s what last year’s explosive Hong Kong extradition struggle was all about. Even the Chinese citizens of the SAR were afraid to be sent to their own country’s national law enforcement. Today’s sequel struggle is occurring because the PRC is about to take its law enforcement to HK!

It’s also helpful to note that the charges against Meng Wanzhou allege types of fraud and lying. Chinese business law generally bans such misconduct, as do American law and Canadian law. Practice, of course, is another thing, which is why such misconduct is criminalized.

If we had perfect knowledge of actual practice in various countries, we might be able to determine whether there is more fraud etc practiced by PRC companies than others. This is at the root of the current USG effort to delist PRC companies from American stock exchanges because the PRC does not allow US regulators to inspect the books of PRC companies listed on American exchanges, as other countries do. No country’s companies should be permitted to trade shares in the United States unless their books are subject to inspection by the US Public Company Accounting Oversight Board. This is essential to protect investors and institutional integrity.

My critique of an important pro-Beijing legal endorsement of the NPC draft Decision on Hong Kong

By Jerome A. Cohen

Here is a passionate legal endorsement of the forthcoming NPC Decision and consequent NPC Standing Committee legislation by Grenville Cross, one of the ablest pro-Beijing lawyers in Hong Kong. His orientation is that of the former government prosecutor that he was, rather than that of a defense counsel or neutral observer. CGTN, which is controlled by the Chinese Communist Party, notes that the opinions of Mr. Cross do not “necessarily” reflect its own. It identifies him as a law professor but fails to state where he teaches.

As in some of his previous relevant op eds, Mr. Cross focuses on stamping out violence and threats to public order and national security but seems much less concerned about the impact that such efforts can have on freedoms of expression. For example, I know what it means to use force to “disestablish, intimidate or overthrow the central government” but I don’t know what it means to criminalize activities of a non-forceful nature that oppose the central government. What “other serious criminal means”, i.e., other than force, does he (and the central government) have in mind?

A similar question arises regarding his enthusiasm for punishing support for HK’s secession from the PRC.

Also very troublesome is his belief that “it is also necessary to criminalize organizing or supporting the activities of any organization proscribed on national security grounds, including organizations affiliated with mainland bodies which have been banned by the central government for security reasons .” This is hardly a narrow definition of “criminal activity”. It could easily punish Hong Kong people for going to a protest meeting or march sponsored by a Hong Kong human rights organization if that organization has been cooperating with a Mainland organization that has been arbitrarily banned by the PRC, which often happens.

In the eyes of Mr. Cross, “all right-thinking people now recognize” that such prosecutions would guarantee full protection and a safe future to Hong Kong’s people. He apparently only knows “right-thinking people”, not “rights-thinking people”! This Cross is too much to bear!

What should the UK do in response to China’s distortion of the Sino-British Joint Declaration on Hong Kong?

By Jerome A. Cohen

Here’s a strong piece from Chris Patten in the Financial Times. It supports some of the suggestions that have been presented in the past few days and mentions the forthcoming G-7 meeting.

But I am disappointed that Chris does not spell out what the G-7, which I mentioned the other day in my blog, should actually do. In response to my blog, a brilliant European scholar has asked whether the G-7 might invite Taiwan to attend as an observer. Too provocative to Beijing? Too dangerous for Taiwan? After the unfair exclusion of Taiwan from the recent World Health Assembly (WHA), observer status at the G-7 would be a nice touch. Even if G-7 does not customarily invite observers, it surely can, and such an innovation would add emphasis to the importance of the invitation. 

Moreover, Patten is in a good position to urge some dramatic diplomatic responses that the UK should independently make in view of the PRC’s newest distortion of the Sino-British Joint Declaration.

Even if a UK request for bilateral discussions with Beijing to correct its distortion of the treaty is scorned, even if a UK effort to take the issues of treaty interpretation to the International Court of Justice is certain to be rejected by the PRC, these measures should be visibly attempted in order to focus world attention on what is happening.

My take on Beijing’s draft Decision on Hong Kong’s national security legislation

By Jerome A. Cohen

1. What may be driving Beijing’s draft Decision?

For the past five years, perhaps because I focus on Beijing’s domestic repression, I have inevitably accentuated the negative in appraising assessments of the PRC’s rising power. The other day I wrote that the Party’s new NPC action to authorize operation of its secret police in Hong Kong is an act of desperation. But I would not characterize it as foolhardy, as have some.

The situation in Hong Kong, from Beijing’s viewpoint, was steadily getting worse, despite the pause in protests occasioned by Covid-19. If allowed to fester without any attempt to suppress it, prospects for the autumn promised to see Hong Kong move further out of PRC control. Unless something was done, democratic politicians were likely to win the September Leg Co election. Measures taken to suspend or postpone the election or to again prevent popular candidates from seeking election or taking office would be sure to inspire huge crowds to reenter the streets if, as appears likely, the virus no longer inhibits public protests by then. Even if pro-Beijing politicians won the election and continued to control Leg Co, they could not be counted on to enact Article 23 legislation, as long experience has demonstrated. Bold central action now, while fear of the virus keeps people at home, might well be the least unfavorable option open to the leadership.

What Beijing has done is to reverse last summer’s humiliating defeat over its failure to have Hong Kong enact extradition/rendition measures that would have transferred some people in Hong Kong to the Mainland’s system of arbitrary detention and criminal injustice. It has done so by taking the Mainland’s system of arbitrary detention and criminal injustice to all of Hong Kong! Article 4 of the draft NPC Decision promises the establishment in Hong Kong by “relevant national security organs” of “agencies” that will improve “enforcement mechanisms” to guarantee national security in terms that the Ministry of Public Security and the Ministry of National Security have made well-known throughout the rest of China. The “final solution”, to invoke a sinister Hitlerian term, is the acceleration of Hong Kong’s transformation into “another Chinese city” long before 2047. This is already proving to be a costly gamble for Beijing, but nothing ventured, nothing gained!

2.  What do we know about the process regarding the draft Decision?

Some interesting relevant tidbits have emerged in recent hours. Apparently the law or laws that the Standing Committee is responsible for drafting in accordance with the not yet approved Decision are well under way.

But has the Basic Law Committee that was established to advise the Standing Committee already been consulted about the text? Prof. Albert Chen of Hong Kong University Law School, a brilliant scholar who has been a member of the Basic Law Committee since its inception, has been quoted in the press as predicting that the anticipated legislation will have broader scope than Article 23 and has appropriately cautioned against the danger that the text may easily be expanded to suppress “political opponents, dissidents, media, educators, intellectuals and so on”. The draft Decision reportedly came as a surprise to him, and I have seen no indication that the Basic Law Committee has yet been convened.

Various pro-Beijing Hong Kong political figures have recently spoken out with ostensible knowledge of the contemplated legislation, but with widely varying predictions of what offenses it will cover. Yet, like the Politburo leader responsible for Hong Kong affairs, they offer assurances that the contemplated legislation will be surgically applied to affect only its supposedly circumscribed targets, allegedly only a small group.

3.  What are the legal and human rights implications?

Here’s an excellent analysis from the NPC Observer of the Draft NPC Decision on Hong Kong. It highlights the serious legal challenges that the draft Decision presents to a conventional interpretation of the Basic Law and also the anticipated rationalizations for overcoming them, at least to the satisfaction of pro-Beijing advocates. In the end, it concludes, as I did in a brief earlier blog, that, given the structure of the PRC constitutional/legal system and the provisions of the Basic Law, the NPC Standing Committee has the power to say that the law is whatever it wishes it to be. So much for the protections supposedly guaranteed by PRC domestic law, including its reign over Hong Kong!

This does not relieve the central government and the Party of charges that the Decision and the legislation will violate the PRC’s obligations under the 1984 UK-PRC Joint Declaration on Hong Kong, including its pledge that Hong Kong will continue to be protected by the International Covenant on Civil and Political Rights (ICCPR) until the Joint Declaration expires in 2047. Nor does it free Beijing from charges that the Decision and legislation may result in violations of the PRC’s broader international human rights obligations.

Apparently to provide assurance that the agents of the Ministry of National Security and the Ministry of Public Security who will now be authorized to openly operate in Hong Kong will not run amok and usurp the role of the Hong Kong police, it has been suggested that the Hong Kong government may revive the Special Branch unit of the local police that was abolished before the 1997 Handover by the UK to the PRC. The vague language of the draft Decision foreshadows this.

Knowledgeable observers will take such assurances for what they are worth.

4.  What is to be done?

What is to be done in response to Beijing’s sudden mortal wound to Hong Kong’s promised “high degree of autonomy”? People should read this excellent statement by Human Rights in China and its very able executive director, my NYU Law School colleague Professor Sharon Hom. It provides the best answer to date. This should stimulate further creative thinking. For example, an effort could be made to cancel or at least postpone the 2020 Olympics in China.

Saturday’s Washington Post editorial suggests that selective resort to certain U.S. sanctions made available by existing American legislation would seem desirable and that the sanctions that would be authorized by a new proposal to be considered by the Senate would add to the possibilities without invoking the nuclear option of entirely eliminating Hong Kong’s special trade and investment status. As the Magnitsky Act experience shows, however, such sanctions are never invoked against the one PRC official we all know should be the target — the great dictator.

But political and diplomatic measures can be taken at the G-7 and other major forums. Despite the PRC’s veto in the Security Council, even U.N. meetings and those of other international institutions can become occasions for multilateral, not merely unilateral, denunciations. 

Surely, Hong Kong’s protection under the ICCPR should be brought into play. But all this requires effective allied cooperation and, above all, vigorous activism on the part of the UK, which is the treaty partner whose expectations are being violated by the PRC.  

Beijing’s agenda to enact national security legislation governing Hong Kong: some initial thoughts

By Jerome A. Cohen

Obviously the current plan to enact national security legislation governing Hong Kong is not Beijing’s preferred way but is a mark of desperation. If it had been attempted much earlier in the post-’97 period, especially before the Article 23 fiasco in Hong Kong in 2003, it might have passed legal muster without creating as much consternation as it does now.

At this time, however, coming in the wake of the failures to enact relevant security legislation via Article 23 and the inability of LegCo to do so in the future on its own, Beijing’s current move certainly looks like a clever trick that inevitably inspires even greater popular distrust than ever in the NPC Standing Committee’s interpretations of the Basic Law.

The NPC Standing Committee will undoubtedly prevail in technical PRC legal terms, given the wording and structure of the Basic Law, the provisions for its interpretation and the way those provisions have been applied in recent years. But the political costs to the Central Government and the people of Hong Kong will be very high.

This will not be the formal end of “One Country Two Systems,” but it is surely a mortal wound to the living, meaningful system that many had been misled into hoping for. The people of Hong Kong should prepare to cope with the varieties of arbitrary detention that have been inflicted on compatriots elsewhere in China who have tried to exercise freedoms of expression. The Ministry of Public Security and the Ministry of National Security will no longer have to operate secretly in the SAR. Both will soon have agencies formally and openly established there. Their promised “enforcement mechanisms” can be relied upon to eliminate dissent in Hong Kong almost as efficiently as they have done on the Mainland.

There are many ways that the United States, the UK and other democratic countries can strongly react to Beijing’s latest legal legerdemain. Perhaps Washington will invoke some aspects of existing federal legislation relating to Hong Kong, but I hope it does not act in ways that will penalize Hong Kong’s already long-suffering people rather than the regime that increasingly dictates to them.

US policy toward the PRC: "the 4 Cs” — cooperation, competition, criticism and containment

By Jerome A. Cohen

Here is a stimulating piece by Steve Orlins, president of the National Committee on US-China Relations for so many years, stressing the importance of Sino-American cooperation in combatting Covid-19. Among other things, Steve discusses the difference between healthy competition and strategic competition.

In a recent Zoom talk, I tried to come up with a catchy slogan summarizing the elements of a balanced US policy toward the PRC.  I called it “the 4 Cs” — cooperation, competition, criticism and containment.

Each of these concepts requires refinement and continuous adjustment. At this time, I’d like to see more discussion, for example, of the differences between desirable containment and dangerous containment.

Also, the scope and emphasis to be given to criticism is an almost daily dilemma for me personally because of requests to comment on this or that PRC policy or action infringing on international political and civil rights as well as rights mentioned in the PRC Constitution. Every criticism provides more ammunition to those who advocate decoupling from the PRC and frustrating its development, policies that I oppose.

Yet self-censorship would be unacceptable and constitute abandonment of hope for moderating the excesses of Beijing’s dictatorship through international exposure and pressures. It would also represent a failure to honor the moral obligation to speak on behalf of the many Chinese who are not allowed to speak of human rights abuses in their country.