“The Return of High Policing in Hong Kong”
Hualing Fu & Xiaobo Zhai
in The National Security Law of Hong Kong: Restoration and Transformation,
Chapter 9, pp. 187-210
Introduction: “What a disgrace!” lamented Xia Baolong, Director of the Office for Hong Kong and Macau Affairs, the highest-ranking official in the Central People’s Government (CPG) in charge of Hong Kong affairs in a particularly condescending outburst to condemn the 2019 protests in Hong Kong. That’s how Beijing, Hong Kong’s sovereign, perceived what happened in Hong Kong in 2019. For the CPG, what was presented as democratic protest by the international media was nothing short of systematic disorder and organized violence bordering on insurrection. What was shocking and extremely displeasing for the CPG was not only the level of violence and vandalism that some Hong Kong people proved to be capable of, but also the degree of sympathy and support they received from the larger communities in Hong Kong and internationally, and the incompetence and indifference of the Hong Kong government. In the CPG’s eyes, Hong Kong has turned from an economic asset into a political liability. More importantly, the CPG believed that the unrest in Hong Kong exposed China to hostile international forces and put China’s national security at grave risk.
The mass unrest creates the need – it also offers an opportunity – for the CPG to react forcefully and strongly to put violence to an end and to restore law and order. Its sharp and drastic action has taken the form of legislative suppression – the passing of the Law of the People’s Republic of China for Safeguarding National Security in the Hong Kong Special Administrative Region (NSL). The law aims both at the immediate goals of “preventing, stopping and punishing” activities endangering national security and the long-term goal of changing the constitutional structure of Hong Kong. The law creates a range of new criminal offences, often broadly defined to cast a wide net against offences potentially endangering national security, exceeding China’s own criminal law for some of the offences in its breadth. It establishes a web of national security agencies with interlocking jurisdictions and duties with Beijing sitting at a comfortable, commanding height. The NSL expands police power and correspondingly either ousts or limits judicial authorities at multiple entry points, ranging from restricting bail, excluding juries and enhancing secrecy in judicial proceedings. Beyond the immediate impact, the NSL attempts to tackle the root cause of the national security risks as China perceives them in Hong Kong – a vibrant and politically charged civil society comprising non-governmental sectors, such as education, the media, the internet, religion or NGOs that were against the government. Through the NSL, high policing has returned to Hong Kong.
This chapter offers a preliminary study of the role and functions of the high policing, also called political or national security policing, which the NSL has introduced in Hong Kong and its initial and long-term impact on the rule of law and rights and freedoms in Hong Kong. The role that the political policing plays in Hong Kong largely depends upon the ultimate political end of the NSL. Beyond the immediate goal of ending violence, nipping the pro-independence movement in the bud, and stopping foreign political meddling in Hong Kong, to what degree does the CPG intend to reorient Hong Kong and to bring it into the Chinese orbit? Clearly, China continues to insist on the One Country Two Systems doctrine (OCTS), although to be enforced in a “correct way” that privileges its one country element. China, however, does not intend to turn it into just another Chinese city. In one of his speeches in 2017, President Xi Jinping highlighted Hong Kong’s “distinctive strengths”, including its pluralist and cosmopolitan society and its status as a major international financial centre. China clearly stopped far short from imposing its own National Security Law (2015) upon Hong Kong, nor did it transplant its own national security practice in its entirety to Hong Kong. In enacting the NSL, China sent a clear signal that, while the excess in 2019 should not happen again, Hong Kong will remain a distinct Special Administrative Region (SAR) in the foreseeable future. There is a long spectrum between the unrest in 2019 and the Chinese regime of national security: where would Hong Kong find itself in the post-NSL era?
This chapter explores three connected issues: 1) the political circumstances for the creation of the national security policing in Hong Kong; 2) the major features of the high policing that the NSL has created in Hong Kong, which are demonstrated by means of an analysis of the NSL, and the immediate impact that the NSL may have on the rule of law and rights and freedoms in Hong Kong; and 3) a possible new equilibrium between the national security policing and Hong Kong’s liberal rule of law under the OCTS doctrine.