• 普天之下 莫非共民|戴啟思
  • 2020-07-11    

 

National Security Law: Article 38 Explained

The new National Security Law (“NSL”) burst upon the scene at 11 pm on Tuesday 30 June. Police officers were busy enforcing it within 24 hours, and the Government is even now advising people about words and phrases they might not now say out loud in a public place without risking prosecution.

The NSL is bristling with legal difficulties. These are a consequence of attempting to draft a Mainland law in such a way so that it might apply directly in our common law system. The result has not been a seamless join of the two legal fabrics.

On the contrary, there are rough edges and loose threads all over the place. The newly minted ‘NSL’ magistrates will have their work cut out for them in handling the first national security cases that come before them.

One feature of the NSL that does not involve current court cases has caught everybody’s attention. It is Article 38 in Part III of the NSL. The article is in the Chapter of the NSL that creates four wholly new offences: Secession, Subversion, Terrorism and Collusion with a Foreign Country or External Elements to Endanger National Security. It says:

“This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.”

People have remarked that this makes the NSL a global law. It applies to everybody on the planet, irrespective of whether they have any connection with the HKSAR. The suggestion is that this makes the NSL something of a legal freak.

The answer is that the NSL is not a weird aberration. There are precedents in other countries’ laws.

Most of a country’s written laws apply only territorially- that is to say within the geographical limits of a state. However, some laws do have extraterritorial application.

Typically, laws are made to apply overseas to regulate the conduct of nationals that are abroad. Some countries’ legal systems work on the basis that laws apply to citizens wherever they are in the world. If you are a citizen of Utopia and you steal in the country of Erehwon, you commit an offence under Utopian law as well as the law of Erehwon.

Many countries do not apply this principle. They accept that once a citizen leaves a country, he or she will be in a place where they will be accountable under foreign laws for their conduct.

It seems harsh if the Utopian thief is sent to prison for a year in Erehwon and, upon completing the prison sentence, is sent back to Utopia to be prosecuted there for the same offence and sent to prison for another twelve months for precisely the same crime.

For this reason, many countries do not make their laws reach out to nationals abroad. When they do there is a good reason.

For example, when it became clear that cheap airline travel from the UK enabled British paedophiles to exploit young girls in Asian countries sexually, the UK Parliament amended the laws prohibiting under-age sex in the UK to have extraterritorial effect. The rationale for the change was that there was an international obligation on states to take adequate measures to protect children from sexual exploitation.

It becomes more difficult to understand claims of jurisdiction over foreigners in another country over acts which may not even be an offence in that place. Smoking cannabis is an offence in the HKSAR but is not an offence in many other countries. What possible benefit could there be in it for the HKSAR in extending our drugs law to all states and making foreigners subject to it when the law cannot be enforced there? None.

This kind of extraterritorial law also amounts to gross interference in the domestic affairs of the other countries. Foreigners visiting Hong Kong who had smoked the drug lawfully at home could, theoretically, be brought before a magistrate and fined or imprisoned. Such action would be a recipe for bad international relations.

However, if a country’s ‘vital interests’ are at stake, the situation is different. If a group of foreigners got together in their own country, again call it Erehwon, and plotted acts of terrorism against another country, say Utopia, the potential harm to Utopia might be great indeed. The plot, if successfully executed, might even lead to the downfall of the democratically elected Utopian Government.

It is for this reason that international law recognises that countries have a limited competence to enact extraterritorial laws that cover the conduct of non-nationals so long as ‘vital interests’ are involved.

However, ‘vital interests’ are often political interests. A long-standing principle of international law is that a country has the power to refuse an extradition request if a crime was of a political nature.

If foreigners want to get together in Erehwon and plot the downfall of the regime in Utopia and rob a bank in Erehwon for funding the venture, the plotters may be prosecuted in Erehwon for bank robbery. Still, they will not be sent to Utopia for plotting the downfall of the Government of that country because that is a ‘political’ offence.

Political ‘no surrender’ clauses found in extradition treaties the world over are like this one, taken from the Hong Kong-Netherlands Agreement on the Surrender of Fugitives.

A fugitive offender shall not be surrendered if the requested Party considers that the offence of which that person is accused or was convicted is an offence of a political character.

Article 38 of the NSL is justified from the viewpoint of the Central Authorities as protecting vital interests. However, there is no chance that the Netherlands will surrender one of its nationals for openly advocating in a public square in Rotterdam that Tibet should be recognised as an independent country. That conduct is now a criminal offence under Article 20 of the new NSL and punishable with a minimum of 5 years’ prison time.

What is the point of Article 38, then if it cannot be enforced in another country? It would appear that Article 38 is there only to scare.

High-profile advocates for Tibetan independence might not visit the HKSAR because they will have breached Article 20 in television and radio interviews. Lesser lights in the Tibetan independence movement will think twice about coming here because they cannot be sure that their words at an open meeting were not captured on video and that recording later sent on to one of the PRC. State organs responsible for national security.

In conclusion, Article 38 is a scarecrow but is one that foreigners who have said or done things now considered to be offences under Chapter III of the NSL do not want to get too close to. This is because the article can transform itself into a national security police officer who is not made of straw should you ever come to the HKSAR.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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