Hong Kong’s Security Law — A New Interview with Ming Pao — 5 July 2020

Chinese version of interviewQuestions from Ming Pao, July 3, 2020 (Published July 5, 2020)

Richard Boucher

  1. In our last interview, you have put much focus on the ruin of rule of law. Will the scope and severity of final version be harsher than you think originally? How will it impact on the independent rule of law, or at least the perception on the independent rule of law from international (esp. US) business in the city? 

The law that Beijing rushed through on July 1 contains language much harsher, much more vague and much more subject to interpretation by Communist authorities than anticipated.  The law establishes a group of ‘enforcers’ in Hong Kong with the right to interpret and decide who shall be prosecuted.  It also leaves loopholes that could allow for extradition to the mainland.  In sum, the law undercuts the entire judicial process –from investigation, to prosecution, to judgement– for the rule of law in Hong Kong.  While this particular law may focus on national security, one can no longer live, invest and do business in Hong Kong without worrying that Beijing authorities will assert their jurisdiction whenever they please or just interpret national security to include business and financial matters.

  1. Do you expect an exodus of US business from Hong Kong? Why or why not? Will they pretend business as usual if the law eventually applied mainly on local dissidents, or will they be afraid to become another example of Michael Kovrig?  

I do not expect an immediate exodus of US firms from Hong Kong.  Decisions on relocation and especially on establishment are longer term decisions made over time.  Firms looking to establish or expand their presence in Asia and the greater China region will tend to go elsewhere, either more directly to mainland locations already subject to Chinese law or to more distant locations, like Singapore, where the rule of law still applies without Beijing’s interference.  It will be better to know clearly what law applies rather than be subject to the vagaries introduced by Beijing with the new legislation.  

We have always known that Beijing authorities could arrest people on the mainland, even foreigners, for whatever personal or political reasons they wanted and indeed there have been any number of unfounded cases over the years, including those of Michael Kovrig and Michael Spavor, the Canadians currently being held.  Now, one has to worry that under the new law such arrests could take place in Hong Kong as well. 

The danger of the new law, however, is what it says about Hong Kong’s environment.  Hong Kong has prospered as a financial and service center because of the inviolability of its laws and regulations, its open information environment, its creative and active young workforce and its respect for the contributions of outsiders and locals in undertaking new ventures.  By outlawing information, expression and certain points of view, the new law undermines every element of Hong Kong’s uniqueness; that will have profound repercussions for the future.  

Most firms will react by maintaining a low political profile in Hong Kong and, perhaps, by avoiding employees and partners with strong political views.  That sort of differentiation can lead to a brain drain and harm the opportunity for employers to benefit from creative, well-informed and active employees in Hong Kong.

All my life, I’ve been bullish on Hong Kong, even at critical moments like the Handover.  No more.  I’m afraid that, over time, the city so many of us love will lose its energy and its lustre.  

  1. How should the United States react to the national security law? You suggest in previous interview that US should take the lead against China’s unilateral action. We have indeed observed some reactions in other countries already. Yet how much can international pressure do on Beijing, if it regards “national security” overriding to the value of Hong Kong’s financial center status, and indeed you admit  that you can’t see any reason to negotiate with Beijing? Or should international society now focus more on any safe harbour/lifeboat plan for Hong Kong people instead? 

No one expects Beijing to back down because of international pressure, nor to admit that they have any reasons to negotiate with foreigners over Hong Kong.  Thus, the challenge for the US response, in coordination with other like-minded countries and organizations, is to adjust relations with Hong Kong, particularly mainland entities in Hong Kong, in light of the new realities.  This requires a balance of 1) more scrutiny and care with regards to mainland officials, money and firms and 2) more openness with regards to Hong Kong people, students, companies and organizations.  For example, one might offer asylum to anyone persecuted for their political views in Hong Kong while preventing mainland officials in Hong Kong or judges who sit on Beijing’s courts from travelling and doing business in the United States.  Providing safe places of refuge for politically engaged Hong Kongers certainly makes sense, but trying to push back on Beijing’s encroachments –so that Hong Kongers still have a future in Hong Kong– should also be a goal of policy.  

  1. After the legislation of National Security Law for Hong Kong, is it still possible for the United States to impose sanctions to Beijing or Hong Kong officials without hurting Hong Kong people (e.g. David Stilwell)? Do you still believe that Washington’s sanctions will stop at those relating to Hong Kong’s integrity, or will they be more directly on weakening HK’s financial center status so as to squeeze China financially? 

The goal should be to adjust relationships to the new reality, not just lash out at Hong Kong or even Beijing.  The tendency of this US administration to adopt sweeping measures, however, makes that kind of precise targeting less likely and can lead to unintended consequences.  

Initial announcements about restricting technology and targeting individuals involved in enforcing the new security law on Hong Kong will need to be carried out with some precision.  Should we restrict high performance computers for Hong Kong’s weather service, lest they be hijacked by the mainland?  Should we ban sales of satellites for Hong Kong broadcasters, particularly when the satellite is built and launched from outside of Hong Kong?  Do Hong Kong entities and individuals involved in enforcement include judges assigned to these cases or Hong Kong leaders, such as the present Chief Executive, who support the law and allow Beijing to arrest people on Hong Kong soil?  These questions are a matter of interpretation.  Over time, sweeping interpretations could effectively become as restrictive as sweeping measures.  

At the time of the handover, the US Consulate General and State Department argued strenuously in internal debates that there was a clear line between the mainland and Hong Kong as regards exports, trade, law, policing, freedom of speech, newspapers and many other areas.  Beijing has blurred that line, making policy much more a matter of interpretation than of simple rules and laws.  

  1. How significant is the National Security Law for Hong Kong issue to the US-China relations? How should we understand Hong Kong’s role in such bilateral relationships? As we may note that, in a strongly partisan congress right now, bills related to China (e.g. HK, Taiwan, Uighurs and Tibet) are nearly the only few enjoying strong bipartisan support. 

Hong Kong law has become the most prominent example of the current Chinese Administration’s heavy handed approach to governing.  When it comes to media and universities, the role of the party in private activities, the status of minorities like the Uighurs, regulating finance and private business, or directing the operations of state enterprises, the current leaders in Beijing assert strict control above and beyond any other goals.  Ultimately, these internal steps will be harmful to China’s domestic growth and social vitality.  They also impact how foreigners deal with Chinese entities.

Like many other outsiders, Americans have reacted strongly to steps by China to pull back from progress and especially from clear commitments to respect Hong Kong’s integrity made in the Basic Law as well as over decades by Chinese leaders from Deng Xiaoping onwards.  Many Americans also have personal connections to Hong Kong, whether as tourists, visitors on US Navy Ships, passengers on cruises, investors, businessmen, friends, relatives, fellow students or just personal sympathies.  For Americans and many other foreigners, Beijing’s assertion of its heavy-handed approach over Hong Kong serves as stark evidence of the current regime’s disregard for global rules, norms and standards.  Hong Kong thus has become the most dramatic example of widespread concerns about China’s retrograde behavior.

Bipartisan support for Hong Kong legislation comes as no surprise.  China has few friends any more in the United States and no politician stands up to defend Chinese behavior.  There is a debate over how to deal with aggressive China behavior but Congress will undoubtedly want to vote for legislation before the election –probably as amendments attached to other legislation rather than a stand alone bill.  Remember, however, that legislation is likely to be permissive –allowing the Administration to impose further measures– rather than requiring too many additional measures beyond what the Administration wants.

  1. What is the potential impact to foreign diplomats in Hong Kong by the national security law?

One of the basic jobs of diplomats is to know what’s going on throughout society and use that knowledge to inform US policy.  I expect foreign diplomats in Hong Kong to continue their efforts and their outreach as they do in other places from Bratislava to Beijing.  U.S. diplomats, including Consuls General, have always met with a full spectrum of Hong Kongers, from democracy advocates to mainland representatives, Chinese entities or communist party sympathizers in Hong Kong.  The meetings have been openly acknowledged, frequently publicized and seen as entirely normal –which in the rest of the world they are. 

My fear is that Hong Kong people will shy away from meeting with foreign diplomats.  Since Beijing appears to believe that meeting with foreigners to discuss the political situation constitutes a crime in itself, will mainland authorities criticise or prosecute routine meetings whose goal is to understand the situation and the view of Hong Kongers?  Will Beijing end up making normal relationships between foreigners and Hong Kongers a crime or at least suspicious as on the mainland?  If so, we will see a chilling effect on the ability of foreign diplomats to understand Hong Kong, the ability of Hong Kongers to discuss a variety of views with a variety of people, and the informed appreciation beyond Hong Kong of the many vibrant social currents that make Hong Kong an intellectually and culturally stimulating star in Asia.