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‘Collusion’ question: could new security law language make it illegal for Hongkongers to lobby for sanctions on China or accept money from foreign groups?
- The implications of adding ‘colluding with foreign and external forces’ to impending legislation have raised considerable concern in some quarters
- Tailor-made law for city unlikely to be passed at Standing Committee meeting on Saturday, multiple sources have told the Post
The use of the word “collusion” in the Hong Kong national security law could refer to lobbying foreign countries to impose sanctions on China. Photo: Bloomberg
The addition of “collusion” with foreign forces as an offence under the national security law Beijing is drafting for Hong Kong has left many questions unanswered, with experts suggesting that lobbying foreign governments to impose sanctions on China and receiving money from sensitive external groups could be punishable.
The term “collusion” in the draft legislation is a new concept for Hongkongers, and its implications are causing considerable concern.
It remains unclear what acts would constitute offences of “colluding with foreign and external forces to endanger national security”, as stipulated in the draft law tabled to China’s top legislative body, the National People’s Standing Committee.
The three-day session of the Standing Committee is scheduled to end on Saturday morning. But multiple sources told the South China Morning Post that the legislation, which has yet to be unveiled, was unlikely to be passed during this meeting or come into effect on Saturday even if it was endorsed on the same day.
A member of the Basic Law Committee, which advises the Standing Committee on matters concerning Hong Kong’s mini-constitution, said the group had yet to be asked to join any meeting to discuss the addition of the national security law to the Basic Law, a prerequisite for the legislation to come into effect in the city.
The Basic Law states that the Standing Committee may add to or delete from the list of laws in Annex III after consulting the Basic Law Committee and the city’s government.
According to the official Xinhua News Agency, the draft law outlines the crimes of secession, subversion of state power, terrorist activities and collusion with foreign and external forces to endanger national security, as well as laying out penalties.
Collusion was missing in the resolution that China’s parliament approved last month, which said the legislation would criminalise “activities of foreign and external forces to interfere in the affairs” of the city.
The term “collusion” is found in the nation’s criminal law, but no one had been charged with colluding with foreign states since it came into effect in 1979, according to Fu Hualing, law dean at the University of Hong Kong.
Fu said he believed lobbying foreign countries to impose sanctions on China could constitute “collusion” with external forces.
“I don’t think labour unions or non-governmental organisations receiving funding from foreign organisations, or holding seminars in Hong Kong, could constitute such an offence,” said Fu, who specialises in mainland China’s criminal law.
The national criminal law states anyone who “colludes with foreign states in plotting to harm the motherland’s sovereignty, territorial integrity and security” can be sentenced to between 10 years and life in jail.
It also says “whoever organises, plots, or acts to split the country or undermine national unification” – the ringleader, or the one whose crime is grave – can get 10 years to life in jail.
Opposition figures and activists fear the collusion charge may be used as “a new weapon” to frame and silence dissidents.
A mainland legal official said “collusion with foreign and external forces” did not mean “drinking coffee with foreign delegates or representatives” would be illegal.
“Academic exchanges with overseas universities and foreign organisations, or exchanges with parliaments in foreign countries can definitely go ahead,” the official said.
“For laymen to understand ‘collusion’, just ask yourself a few simple questions: did you receive money or instructions from sensitive foreign organisations? Are there strings attached with that money? Did you act according to the instructions? As a consequence, did your action open a door for the foreign or external forces to undermine China’s national security or national interest, or Hong Kong’s stability?”
Ling Bing, a law professor at Sydney University, said the scope of meaning of the term “collusion” in Chinese law was very broad.
A three-day meeting of the National People’s Standing Committee will wrap on Saturday, though sources say it is unlikely Beijing’s new tailor-made security legislation for Hong Kong will be passed at the session. Photo: Xinhua
“Lobbying foreign countries, receipt of funding or co-organising forums could be seen as ‘collusion’,” he said. “But whether it would constitute an offence would depend on the purpose of the act, such as whether it aims at committing a crime endangering national security, such as secession or subversion.”
Peter Wang Shucheng, a specialist in mainland law at City University, noted that before the change in the wording, the crime concerned merely Hong Kong affairs, which meant that the Hong Kong authorities would be responsible for it.
But following the amendment, he said, the matter had been escalated to the national level, giving mainland China the authority to take action.
He suggested the original phrasing could have let national security threats in Hong Kong fall through the cracks, because the previous version covered only interference in the city’s affairs, without mentioning threats endangering the country.
“The act should seriously threaten national security,” he said, adding that normal day-to-day exchanges with foreign nationals would not be affected.
The idea of banning local groups that have links to foreign organisations is not entirely an alien concept in Hong Kong law, although the word “collusion” is not used here, according to experts.
The colonial-era Societies Ordinance, which was amended in 1997 to empower the government to prohibit a society from continuing to operate on the grounds of national security, stipulates that a society is considered “connected” to such a foreign organisation if it “solicits or accepts financial contributions”, is affiliated with the organisation, or has its decision-making process directed, dictated, controlled or participated in by that organisation.
Hong Kong Bar Association chairman Philip Dykes likened collusion to the common law concept of conspiracy.
“It means that you get together to arrange something secretly with others,” he said. But it might not amount to a crime unless they took specific criminal action, he added.
Hong Kong’s security minister John Lee Ka-chiu visited Macau on Friday, where the city’s chief executive, Ho Iat-seng, briefed him on the process of enacting the city’s national security law in 2009 and the operation of its national security commission.
Former chief executive Tung Chee-hwa said at a seminar on Friday that Beijing’s move to introduce a national security law in Hong Kong was necessary.
“It’s more than fulfilling the responsibility for the country. We must do this for our own future,” he said.
In a related development, the top United Nations human rights official, Michelle Bachelet, said any such laws imposed on Hong Kong “must fully comply with China’s human rights obligations” and international treaties protecting civil and political freedoms.
Additional reporting by William Zheng