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Hong Kong National security bill won't break HK's judicial independence — ex-police chief

In an interview to TASS, ex-chief of the Hong Kong Police Force Andy Tsang gave some details on the legislation and explained why China has waited for more than 20 years to propose the law

Chinese officials announced that a draft resolution on Hong Kong’s national security law will be included in the agenda of the third session of National People's Congress of the People's Republic of China. This resolution enables the NPC Standing Committee to craft the bill’s details and pass it. Afterwards, it will be included to the Annex III of the Basic Law of Hong Kong and become law. In other words, Beijing has decided to bypass the Legislative Council of Hong Kong and craft a new national security law for the city itself. According to the resolution, this new legislation is intended to prevent, stop and punish acts in Hong Kong that threaten national security (secession, subversion, terrorism and foreign interference). And it also suggests that Chinese Central Government will set up its own "security organs" in Hong Kong. Deputy Director of the National Narcotics Control Commission of the Ministry of Public Security of China and former Commissioner of the Hong Kong Police Force Andy Tsang revealed some details to TASS on the legislation and why China has waited for more than 20 years to initiate that bill.


- Good evening, Mr. Tsang. Can you give us any details on the legislation?

First of all, I want to make some points. Your first question is about why the Central Government is introducing this bill now. The purpose of doing this is to address clear and serious threats to the internal security of Hong Kong and national security of the country because of the current legal loopholes that exist. If such a loophole didn’t exist, there would be no need for the Central Government to do this.

The threats that I am talking about, can be seen in what happened in Hong Kong in past several months. I am sure you have been following it and I do not need to provide any further explanation.  So, unless we do this, we will not be able to stop these threats.

- The PRC restored sovereignty over Hong Kong more than 20 years ago. Why has the Chinese government initiated this Hong Kong national security legislation only this year?

National security has always been the country’s responsibility. When we designed the "One country, two systems", we made a requirement in the Basic Law of Hong Kong for Hong Kong to enact a law to uphold national security under a certain respective law.

Now, for political reasons and other reasons the city is unable to enact the law. I mean the country has been extremely patient. I can say the nation has been waiting for 20 years, more than 20 years. And yet only now has the country made its move. This is because the threat has become so serious that something must be done. Otherwise, the country’s national security would be jeopardized or the internal security of Hong Kong itself would be endangered. It's only because of the need for the country to fulfill its responsibility.

You can put it another way. As a result of the failure of the city itself to enact the law to uphold national security, the central government now needs to take these steps.

You had served as police commissioner from 2011 to 2015. In 2014, mass protests took place in Hong Kong. It was the movement which is now known as the Umbrella Movement or the Occupy Central Movement. So you personally have experience in dealing with mass demonstrations. What is the difference between the protests in 2014 and in 2019?

I am glad you did not use the term of civil disobedience because what I saw in 2014 and what I see now has nothing to do with civil disobedience. This is civil disturbance. We are talking about attacks, about damage, about arson, about unlawful assemblies, riots and even acts resembling terrorism during this period.

I do not think anyone can call this civil disobedience, which by nature is peaceful. What we are seeing is none of this. Now, everything has changed. Its conversed. When we were dealing with the unlawful Occupy Central Movement back in 2014 when I was a commissioner, we were seeing major intersections being blocked and, for a long period of time, attacks on police officers. Attacks on police primarily involved the use of improvised weapons like sharpened umbrellas, various sorts of sharpened objects or shields with spikes, or bricks.

Now what we are seeing now is an escalation. Instead of attacking just police officers or police cordon lines, the rioters - sometimes people call them protesters, but I would rather call them rioters - these rioters assault people who hold different views from their own or sometimes even attack innocent bystanders. So why were they trying to harm those innocent bystanders who happened to be on their way. These people were beaten, sometimes very severely. Other times, it was due to where they came from, including our mainland visitors. That’s the target.

And the escalation of the level of violence really is horrifying. So from improvised weapons they move on to petrol bombs, and then on to firearms and, even lately, explosives. These threats are real and serious and must be addressed. So I am getting more worried. And I am really relieved that’s the Central Government is now taking this step to introduce the law directly to Hong Kong to address the threat. Because we have legal loopholes which otherwise cannot be blocked.

- Do you see any difference between the protests in 2014 and the demonstrations last year from the perspective of foreign involvement?

There two observations on this. One of them is getting more obvious. In 2014, we were seeing support by foreign and external powers, support from behind. Now, this time around, we are observing direct interference both from foreign and external powers. And this is worrying.

The other worrying thing is internal. From 2014 till now, we have seen radicalism escalating to extremism, and escalating to violent extremism. I think everyone must be worrying about that. And so the other worrying fact is that we are seeing these participants. I mean the people who participate in these criminal acts, including students, sometimes even young students, teenagers and they were being sort of, I would call them deceived to believe certain things, into doing these things which are terrible. Things have gone from bad to worse. And something must be done to stop this.

- You just said you felt relief when you heard about this legislation, but some people did not feel this. First of all, their worries are connected with this law. According to it, the Chinese Central Government will set up organizations in HK in order to fulfill the responsibility of maintaining national security. And there is still not so much information on the details of this legislation. Can you give them to us and everything that is connected to these organizations which will be set up in Hong Kong to maintain national security?

I will do with this from two perspectives. First of all, the focus is on the bill itself, and its eventual explanation. The bill is directly against certain acts, including acts of separatism, acts of overturning the government, terrorist acts and interference by foreign and external powers. It's very specific. And all of this has nothing to do with ordinary members of the public. And it would be fair to say that freedom and the rights of ordinary members of the public will not be affected in any way. So, they have nothing to fear.

Who needs to fear? Those people who are committing all these acts - acts of separatism, acts of overturning the government, acts of terrorism, and acts of interference by external powers or foreign governments. So it's very specific.

And you have just said that many people were relieved to hear that. Of course, if it effectively tackles these threats, the greater number of the ordinary members of the public would be better protected. They would be alleviated from the fear of this violence as they walk down the streets of Hong Kong. Now shop owners are worrying about their stores being damaged, not to mention, ordinary members of the public fear being beaten up. So, once we are able to stop this, we can put their lives back on track to normalcy. And so we will benefit from this.

The second question you asked is about the agencies that will enact this new legislation. Of course, with any new legislation we have to think about giving it effectiveness. And I believe what will happen is no different in any country. I mean national security is a function that is fulfilled by almost any government in every corner of the world. And so you would expect the agency responsible for upholding national security to be operating. Whether or not the power of this national security agency will include the power of arrest or the power of detention, I believe that would be clearly spelled out and prescribed by law. And given the development of the rule of law in China, I am confident that would be a fair game for everyone.

- I understand your point, but the most frequent question about these agencies is the following. In what legal framework will the staff of these agencies work? Will they work in the legal framework of the PRC or Hong Kong?

I think it would be made very clear to the people of Hong Kong, the people of China and perhaps to the people of the world. What I understand about these new offences under this new law is if anyone is arrested the individual will still be brought before the court of Hong Kong. Thus, what we are talking about is that they will be tried under the Hong Kong judicial system. That’s the way I understand it.

And of course you obviously want to wait to see the actual legislation. But, in my understanding, this is the way it is going, because when the central government announced it, there is one point which it emphasized, and that is judicial independence. Therefore, the final determination of court cases still rests with Hong Kong. So I can only read that these new offences would be tried in the court of Hong Kong and not in the Mainland’s court.

- So, according to your information, this legislation will not let the Hong Kong government extradite people to the mainland?

Nothing to do with that. Nothing to do with that.

- There are lots of publications about this legislation in Hong Kong and in the international media. And it is said that it has special importance before the elections. The Hong Kong Legislative Council election is scheduled for September 2020. People think that the elections and this legislation itself can lead to a new round of protests. Do you think this is possible? Also there are fears that people detained during such protests for any violations or crimes would be prosecuted according to the new law. How would you comment on such fears, will investigations and trials be held according to the current laws or will they also include the new legislation?

All right. In the legal system we have in Hong Kong any new law introduced will not have a retrospective effect. This means they will only take effect on the day it is enacted. I don’t have a timetable when the actual law will be enacted. Take for instance if the new law is enacted, say, in July, anything that happened between now and July cannot be dealt with by the new law. It has to be dealt with by the existing law. This is the Hong Kong legal system.

But let's go back to your question. Would be there more protests? Just yesterday, we had radicals coming out in Hong Kong, causing damage and attacking innocent people, including a lawyer who simply tried to argue with them. He was badly beaten up and seriously injured.

So because we are dealing with - remember I said it - obvious oppression and a serious threat to the internal security of the city and the country’s national security, we can only expect that these threats will continue until the new law comes into effect. It's sad, but that’s reality.

- Another question which frequently pops up across Hong Kong’s media and social media is about the crimes and penalties, which will be dealt with based on this legislation. For example, the protesters which were detained last year are prosecuted for unauthorized assembly, unlawful assembly, and disorderly conduct. And in some of the gravest cases, they are prosecuted for rioting. Thus, according to existing laws the harshest is imprisonment for nearly 10 years. Would you know if this legislation contains longer imprisonment terms for violations?

If everyone is equal before the law then it doesn’t matter if someone is a media worker or bathroom janitor. If he or she commits a crime, he or she should be brought before the law. I mean it is as simple as that. And we have a judicial authority which is hailed in very high regards by the international community. If they think they should not be brought before the court, they have a fortunate chance to argue their case before the court.

Everyone is equal before the law. So it doesn’t matter if you are the part of the media. If you commit a crime, you have to appear before the court and be dealt with by the law.

Now, as for the penalties for these new offences, I don’t have any details myself. But it would be useful to make references to what other countries are doing. I mean penalties that other countries mete out in similar cases. I mean take your own country, Russia for instance, or you may refer to the USA, the UK, or some Western and European countries. The way I see it is like this: the new offences will be heard in the court of Hong Kong. And they will have advocacy. That’s all I can say.

- The last question about these agencies concerns the staff. Will it be filled in Hong Kong or will personnel be sent from the mainland?

The bill that we are introducing requires two things. One dedicated unit to be set up by Hong Kong itself, by the city. And then the other unit will be set up by the Central Government at the national level. So it's both on the local and on the national level.

As a matter of fact, this has always been the case with other jurisdictions. Take your own country, you have national agencies taking care of this, but local enforcement agencies would always be involved. The same goes for Hong Kong, where we have a special branch, which is in charge of those things even now.

- There are a lot of rumors about this legislation. And one of them is connected with press and Internet freedoms in Hong Kong. Does this law have any provisions about media and Internet control in HKSAR?

I have no specific information, but there are two points that I wish to make. First of all, the world of the Internet is not a world of its own. The Internet world is still part of the physical world. So, whatever applies to the physical world will still apply to the Internet world. That’s part one.

So getting back to the second part of the question, which is freedom of speech and freedom of the press. The same standard is applied. What you can do in the physical world, you can do in the Internet world. What you cannot do in the physical world, you cannot do in the Internet world. So, there is no change of standard.


Interviewed by Roman Balandin