A Hong Kong special tribunal convicted a citizen of violating the National Security Act imposed by Beijing. Formally in line with Western regulations, this law is a ballistic weapon capable of hitting the US, EU and UK by Andrea Monti – Adjunct Professor of Digital Law at the University of Chieti-Pescara
The Western media gave comprehensive coverage to the news of the indictment of a Hong Kong citizenbased on the violation of the Law of the People’s Republic of China on the Protection of National Security in the Hong Kong Special Administrative Region . The court found the defendant guilty of ‘secession’ and ‘terrorism’, two types of conduct that, together with subversion and collusion with foreign intelligence, can carry a life sentence . Specifically, the charges concerned that the defendant, driving a motorbike and waving a flag with the slogan Liberate Hong Kong, Revolution of Our Times, crashed into a police cordon.
A comparison with Western systems and Italy
Even more severe behaviours in our country’s recent history (from political statements to organised street violence) have not had similar judicial outcomes to those we are dealing with today. However, strictly speaking, also according to Italian law, it would have been possible to consider as an act of terrorism the behaviour of a person who, moreover, during a protest demonstration, attacks the police forces of a sovereign state, praising secession and revolution.
The offences provided for by the Hong Kong National Security Act have a reasonably precise correspondence with those provided for by the Criminal Code, which is even more repressive, at least on paper. Among the crimes against the external and internal personality of the State provided for by Articles 241 to 293 of the Criminal Code, there are, to name a few, the attack against the integrity, independence and unity of the State (Art. 241), the commission of hostile acts towards a foreign State, which expose the Italian State to the danger of war (Art. 244), the corruption of the citizen by the foreigner (Art. 246), the procurement of information concerning the security of the State (Art. 256), political espionage and terrorism (Art. 246), political and military espionage (Art. 256), the disclosure of State secrets (Art. 261) and information the disclosure of which is forbidden (Art. 262), anti-national activities of citizens abroad (Art. 269), the constitution of associations for terrorism, including international terrorism or subversion of the democratic order (Art. 270bis), and attacks for terrorism or subversion (Art. 280).
Therefore, it would be difficult to protest because a Country enacts regulations that protect its sovereignty from internal and external aggression by providing draconian punishments or special rites to celebrate the trial.
The geopolitical significance of Hong Kong’s special law
We can certainly discuss the political significance of this citizen’s gesture and consider it a legitimate act of rebellion, such as attacks by Italian anarchists or the one that culminated in the assassination of French President Sadi-Carnot in 1894 .
If this is so, then the issue is no longer whether the special law of Hong Kong is more or less repressive of fundamental rights (which, it should be remembered, are a Western creation). What is important is, if anything, how this legislation fits into the complex scenario of the international geopolitical balances and, in particular, the fact that Hong Kong has always represented (i.e. since it returned to Mainland China) an element of structural weakness in the system the Chinese national security.
The return of Hong Kong to the sphere of political-legal control of Peking has not eliminated the presence of the Western Intelligence and, in particular, of the British one . It is, therefore, reasonable to think, based on a consolidated strategic doctrine of management of the informative activity, that the networks of informers and contacts constructed over time remained active, even if at a deeper level of clandestinity. Furthermore, a doctrine of protecting national interests based on offensiveness in foreign policy does not disdain to weaken the adversary country by fomenting, more or less clandestinely, separatist or anti-government sentiments or by financing propaganda and disinformation. Nothing new compared to the Western approach to the matter. It suffices to remember post-Second World War USA and Russian clandestine activities in Italy, Anglo-Russian struggles in Afghanistan from the 19th century to the present day , pro-Moscow Ukraine propaganda and the USA controversy over the alleged Russian intervention in the 2016 presidential election that gave Donald Trump the ruling power .
If this is true, it is equally reasonable to imagine that law was the best tool to allow muscular and controlling interventions to manage unrest, lesser actions such as more or less indigenous propaganda and espionage activities.
What the regulatory choices of Peking suggest
One key to interpreting how the law on the Hong Kong national security has been written and applied, therefore, is to consider it an instrument to standardise the capacity of Peking to intervene also in an area that, due to the political compromise known as one country, two systems, enjoys a technical-juridical autonomy concerning the central power. Almost taking it for granted that Chinese law is not applicable in Hong Kong, several analyses of the outcome of the trial of the citizen accused of terrorism have spoken of a departure from the principles of common law, stigmatising the absence of a jury or the denial of bail .
The first value of this law on national security is, therefore, political and reaffirms the hierarchy of power in that area, re-establishing the prevalence of the principles and values of Mainland China.
The second important aspect is the formal proceduralization of anti-terrorism. The ‘legalisation’ of the national security attributes to the public judicial process, the function of a powerful political instrument to ‘educate’ the population. On the other side, paradoxical as it may seem, a law that regulates a subject as delicate as national security allows the establishment to better control its structures and prevent the creation of pockets of power out of control. It has already happened in China with the transparency law .
Thirdly, the use of the law gives an appearance of legitimacy to repressive practices that in other times (and also in other latitudes) were handled without any publicity and in a rather ‘sketchy’ way.
Finally, thanks to this law, it is possible to manage ‘in the clear’ the foreign policy implications of espionage actions in case of necessity. Article 38, in fact, literally says that this law applies to offences planned and committed against the Hong Kong Special Administrative Region from outside the Region by a person who does not have a residence permit. Also, concerning Hong Kong, China has equipped itself with a ‘ballistic’ legal instrument that allows it to strike those responsible for actions against its state sovereignty wherever they may be.