The Metastasis of “National Security” in China

–Alvin Y.H. Cheung, Progressive Lawyers’ Group, Hong Kong

As Dwight D. Eisenhower observed as early as 1961, national security is big business–and, if left to its own devices, will accumulate political power, with potentially disastrous consequences.  Recent events in China have yet again confirmed Eisenhower’s insights.  The mass arrests and disappearances of Mainland lawyers, official threats to investigate “malicious short-selling of stocks and stock indices” in connection with stock market turbulence in Shanghai and Shenzhen, and a crackdown on religious organizations–including in respect of their activities in Hong Kong–all bear the hallmarks of an all-encompassing definition of national security.  This conception, if left unchallenged, will have dire ramifications domestically and abroad.

The National Security Law: Defining Everything As “National Security”

The recently-enacted National Security Law is the most obvious evidence of the metastasis of “national security.” Article 2 of that law defines the phrase in sweeping terms:

National security refers to the relative absence of international or domestic threats to the state’s power to govern, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major national interests, and the ability to ensure a continued state of security.

Lest there be any doubt about what might fall within that definition, Chapter II includes a lengthy list of “Tasks in Preserving National Security.”  In addition to predictable entries such as protecting borders (Article 17) and punishing subversion by “foreign influences” (Article 15), national security apparently also includes maintaining the “order of the socialist marketplace” (Article 19) and “guarding against and resisting negative cultural influences” (Article 23).  The National Security Law could therefore conceivably justify governmental interference in areas as diverse as online discourse, the short-selling of stocks, and the importation of Japanese anime.  Simply put, it is difficult to conceive of any area in modern Chinese life that does not fall within the ambit of “national security” as defined in the Law.

Extraterritorial Application of Mainland Law: Exporting Chinese “National Security” Abroad

The ambit of Xi Jinping’s conception of “national security” would be bad enough if its effects were confined to Mainland China.  However, there are signs that the philosophy behind the National Security Law will be applied not only to domestic policy, but to the Chinese periphery and beyond.

The Hong Kong and Macau Special Administrative Regions (SARs) are obvious targets.  Article 40 of the National Security Law refers to the SAR governments having “responsibilities for the preservation of national security,” without elaboration.  As I warned on ICONnect in February, Hong Kong and Chinese officialdom may–despite several suspiciously specific denials–use the threat of direct application of the Law to force the enactment of local national security legislation without adequate debate.  (Cf. Simon NM Young’s Guide to Basic Law Article 23.)  Even absent specific national security legislation, Article 40 may be taken by the SAR governments as carte blanche to undermine the rule of law and fundamental rights, in the name of “fulfilling” their “national security” responsibilities.  More worryingly, there is evidence that Mainland authorities are now exercising direct authority over activities in Hong Kong, notwithstanding the prohibition in Basic Law Article 22.  Pastors based in Hong Kong have been summoned by Mainland authorities over their proselytising to students from Mainland China studying in Hong Kong–ostensibly for violating the Regulations on Religious Activities of Foreigners in China.  The extraterritorial application of Mainland laws to Hong Kong by Mainland authorities will only intensify under the current “national security trumps all” narrative.

Nor will Beijing’s reach be readily confined to Hong Kong–or even to areas, such as Taiwan, which were traditionally treated as Chinese “core interests.”  The Draft Law Regulating Foreign Non-Governmental Organizations, for instance, would impose vetting requirements on all foreign-based nonprofits seeking to conduct “activities” in China–effectively slamming the door on cultural, educational, and technical exchange.  And China’s continued war on journalists both domestic and foreign will inevitably impinge on press freedom far beyond Chinese borders.

Conclusion: When Everything Is “National Security,” There Is No Longer Room For Law

Ultimately, the current conception of “national security” gives the lie to any notion that the official line about “governing the country in accordance with law” will result in more restrained governance.  The adoption of a definition of “national security” so broad as to be effectively meaningless gives almost unlimited scope for interpretation and for state intervention.  It has swept away the tacit understanding previously relied upon by Chinese rights lawyers–that they could operate more-or-less freely, provided they avoided certain particularly “risky” areas.  And it will likely result in the further concentration of power in the National Security Commission headed by Xi Jinping.  Decades after China’s governmental apparatus began to reconstruct itself after the ravages of the Cultural Revolution, the pendulum is swinging–yet again–in the opposite direction.

Suggested Citation: Alvin Y.H. Cheung, The Metastasis of “National Security” in China, Int’l J. Const. L. Blog, Aug. 6, 2015, at: http://www.iconnectblog.com/2015/07/the-metastasis-of-national-security-in-china