Academics adrift after Hong Kong passes new security law

When Aaron Han Joon Magnan-Park secured a tenure track position at the University of Hong Kong (HKU) just over a decade ago, it was the dream job for the American academic specialising in Hong Kong’s action cinema. “I felt that I had won the academic lottery,” he said.

Since then, however, much has changed in a city once admired for its freedoms and openness. The former assistant professor in the department of comparative literature at HKU left Hong Kong last year, pointing to the Beijing-imposed National Security Law (NSL).

“Under this new political reality, I could not finish my tenure book the way I wanted to … without somehow finding myself on the wrong side of the new red lines,” he told University World News.

Now, with the Hong Kong legislature passing a new security law for the city on 19 March, he finds it hard to imagine he could return to Hong Kong “anytime soon”.

Contacting people in Hong Kong could be risky, said Magnan-Park, who is still working independently on his book on Hong Kong cinema. “I would have to conduct my research so that I wouldn't have to involve individuals [in Hong Kong],” he said.

The new Safeguarding National Security Bill law, known as Article 23 under Hong Kong’s own mini-constitution, the Basic Law, was passed unanimously by the 89-member pro-Beijing legislature, known as Legco, just 11 days after it was tabled, and after less than a month of public consultations.

New categories of crime

It comes into force on Saturday 23 March 2024, with five new categories of crimes: treason, insurrection, sabotage endangering national security, external interference, and espionage and theft of state secrets. Treason, insurrection, and sabotage in collusion with external forces, are punishable by terms up to life imprisonment, while espionage and acts of sabotage such as cyberattacks can carry jail terms of up to 20 years.

Beijing, which imposed the NSL on Hong Kong in 2020, and the Hong Kong government say the NSL helped to bring back stability to the city after months of protests during 2019-20, and that Article 23 will apply alongside the NSL to further “secure Hong Kong”.

Both Beijing and Hong Kong officials have also tried to allay fears that the law will be used to suppress dissent or criminalise words and actions that were previously unrestricted, saying, as it did with the NSL, that Article 23 targets an extremely small minority of people who endanger national security. Officials stress that ordinary business people, individuals, organisations, and the media “will not unwittingly violate the law”.

But hundreds have been prosecuted under the NSL since 2020, with many others awaiting trial in prison without bail. The US-based Hong Kong Democracy Council puts the number of political prisoners in Hong Kong currently at 1,929.

Self-censorship

Academics, journalists, members of civil society organisations and other groups say they are fearful of unknowingly falling foul of the new law, because of the vagueness of the provisions.

Magnan-Park said people are self-censoring themselves on many issues “to protect oneself, one’s colleagues, one’s students, one’s family, and one’s friends from potential political persecution. Who knows who is recording what you say and do with the intent of catching you in accidental violation of Article 23 and reporting you to the anonymous hotline for punishment?

“It feels like you’re caught in the middle of a minefield, but you don’t know that it is a minefield”.

He said that when he arrived at HKU in 2013, his colleagues and strangers on the street “spoke freely [and] even joked about sensitive politics related to China, the Chinese Communist Party, President Xi Jinping, Hong Kong’s chief executive, and democracy without fear because of the rights promised and protected by the [Hong Kong] Basic Law.

“All of these statements became taboo when the NSL was passed in 2020 and will become even more taboo now that Article 23 was voted unanimously, 89-0, into law and will go into force this Saturday.

“Now everyone is self-censoring even more because no one knows where the red lines are due to the intentional ambiguities enshrined under Article 23, and the legal penalties are even fiercer.”

Of his own academic work, he said he wanted to write about Hong Kong action cinema because of its unique Hong Kong characteristics. “But this became dangerous as early as 2014 when the Umbrella Movement happened,” he said in reference to the student-led street protests of that year.

“At HKU, we held a march and rally defending academic freedom. Since I was new to the university, I marched in the second row right behind my senior colleagues,” he said.

Doubts about autonomy

It was then, he said, that he began to have second thoughts about Beijing’s promises of autonomy for Hong Kong under the 1984 treaty known as the Sino-British Joint Declaration. That treaty promised to preserve Hong Kong’s freedoms for 50 years (till 2047) after the 1997 handover to China following 150 years of British colonial rule.

Then came the 2019 pro-democracy street protests, which lasted many months. They began peacefully but erupted into violence. Battles broke out between students and police on university campuses.

The events of 2019 “told me that Hongkongers were getting desperate to keep their version of Hong Kong alive and kicking until 2047”, said Magnan-Park. But it also led to a drawing of red lines of what was acceptable in Hong Kong and what was not.

He said because of this, his tenure review at HKU did not go well. His contract ended in June 2023 and he returned to the US.

“I will continue to conduct research on Hong Kong as I so desire, but I cannot do so in Hong Kong. I can now only continue my research outside of Hong Kong and I do not [expect to] return to Hong Kong anytime soon,” Magnan-Park said.

“I am not the only scholar who finds [themselves] in this geopolitical self-exile scenario. Those who chose to remain in Hong Kong have had to radically change their research agendas so that they are in compliance with the new political reality,” he added.

While many academics left Hong Kong after the 2020 NSL came into force, a large number cannot move out of Hong Kong.

“Even if they have overseas academic credentials, their whole life and career is in Hong Kong. It’s almost impossible for them to leave. So, they just have to radically change how they go about things,” Magnan-Park said.

State secrets

Knowing what is allowed after successive tightenings, both legally and in the general atmosphere in Hong Kong, has become a guessing game for academics.

Michael C Davis, a human rights professor and fellow at the Wilson Center, a Washington DC think tank, who taught law at HKU and other universities in Hong Kong for over 30 years, told University World News that violations under the category of ‘state secrets’ were difficult to determine.

“If you are a scholar doing research, whether you are in Hong Kong, or a Hong Kong academic, or you are a foreign academic studying Hong Kong, you really don't know just what is prohibited,” he said.

“The mainland’s version of national security, which the Hong Kong government openly embraces in the Article 23 consultation document, is what applies in Hong Kong in understanding these laws. That means what Hong Kong academics face is similar to what academics face on the mainland,” Davis explained, noting that even social and economic information can fall under state secrets.

“On the mainland, when academics do research and they are accused of exposing state secrets, they either lose their jobs or get prosecuted and punished; all kinds of things happen to them,” he said.

Davis said it is unclear what is meant by “acquiring” or “being in possession of state secrets” which have become new crimes. “If you say something today, but you retain it, or publish something and it's retained, will that now be an offence [for] having kept it in your possession?

“If you're being prosecuted, they could use your record of the past, either as a makeweight argument, or to show it is a continuing ongoing effort on your part that you haven’t stopped,” Davis added, even though the new law is not to be applied retrospectively.

In making his argument, Davis pointed to the ongoing NSL trial of Jimmy Lai, the prominent owner of the now defunct pro-democracy Apple Daily newspaper, in which court proceedings have referred back to things he said and did before the National Security Law was imposed.

“So [the past is] being used as evidence of what he intends, his views on things,” Davis said.

Maganan-Park concurred, saying: “Article 23 is written so that you can be held in violation of statements and positions and acts that were made before this coming Saturday [when the law comes into effect]. So, if they catch you after Saturday, they can go back into the past to define a pattern of ‘seditious behaviour’.

“What at one time was legal, is now illegal.”

Simon Young, a law professor at HKU, in a submission to the legislature during the public consultation phase, said: “No definition of ‘secrets’ is given. I would think it means something reasonably expected to be kept confidential.”

This lack of precision around terminology could have particular consequences for academics. For example, Young noted: “This new offence appears to apply not only to tangible items such as ‘documents’ and ‘articles’ but also to intangible information. Does one ‘acquire’ information the moment one is told the information by another person? Or the moment one discovers it through one’s own research?”

Young raised the question of what happens when someone stumbles upon the state secret while doing lawful research at a library, archive, or online, and knows that it is a state secret. “Maybe the solution is to require proof of an intention to endanger national security in all cases of unlawful acquisition, possession, and disclosure,” he suggested.

Academic freedom debate

A workshop on Article 23, held last month at SOAS (School of Oriental and African Studies) University of London, UK, produced a summary of the debate which noted Article 23 would “reinforce the city’s path of autocratisation”.

Organised jointly by SOAS and the Georgetown Centre for Asian Law in the US, the workshop, which included academics, lawyers, members of think tanks and other experts, was held behind closed doors to protect people’s identities and allow them to speak freely.

The report said that reinforcement of autocratisation would be done by “criminalising information dissemination and access via external sources as ‘disinformation’ or ‘espionage’ and prohibiting information flow from within by the offences of ‘external interference’ and ‘theft of state secrets’, according to the report, which anonymised the workshop participants.

“The new Article 23 legislation would further incapacitate scholars in China and Hong Kong studies to carry out good quality academic research due to the risk of criminal liability under the labels of ‘external forces’, ‘foreign interference’, ‘state secrets’, and ‘espionage’”.

Even before the Article 23 legislative consultation, academics in the UK had already expressed concerns about self-censorship in teaching and research, the development of academic exchanges as well as the forging of research partnerships with universities and scholars based in Hong Kong, the report noted.

Scholar participants at the workshop also reflected on how overseas academics should position themselves when engaging in research about Hong Kong.

“It appears inevitable that behaviours will be adjusted to secure safe working relationships with Hong Kong-based scholars under the new legal environment. Yet, it is also an exercise of self-censorship”, the report said.

Extraterritoriality and external influence

The concept of colluding with foreigners under the new law also presents potential problems for collaborative research or simply consulting experts within a particular academic field.

“Academics today function within groups of experts in different subject areas,” Davis said, noting that he is a member of various academic WhatsApp groups. “These experts share information constantly. It used to be collegial — you worked a lot with your colleagues down the hallway. Now … you work with your colleagues all over the world.”

He also pointed out that even if certain topics are barred in Hong Kong, institutes outside Hong Kong “are not hesitant to host conferences and workshops critical of governments around the world”. He asked: “Do you then, as a Hong Kong academic, interact with those Institutes?”

Magnan-Park explained: “By definition, as a non-local academic, I will be considered an external influence. With the red lines being so ambiguously laid out, could any local Hongkongese who engages with an overseas professor be in violation of Article 23 since this could be interpreted as engaging with an ‘external influence’?”

Magnan-Park then pointed to a hypothetical but highly possible scenario whereby an academic attends an academic conference outside of China and sits on a panel where a panel member takes a position highly critical of China. “If I had stayed at HKU, and then came back to Hong Kong, would it be seen as a seditious act that I was on the same panel with someone critical? If they had said the same words in Hong Kong, they would most likely be arrested,” he said.

Davis pointed out that Article 23 also makes it a crime “not to report treasonous acts that people are committing and that you become aware of”, noting this was an attempt to target family members and friends of people accused of such acts, such as students and academics in exile.

“If the student fled before these laws were passed, they can still be accused of an ongoing pattern of this kind of behaviour. So does the family member who does not report on them get into trouble?” he asked.

In a recent statement UN High Commissioner for Human Rights Volker Türk pointed to serious concerns about the incompatibility of many of the new law’s provisions with international human rights law.

“This ambiguity [in the law] is deeply troubling, given its potential misuse and arbitrary application, including to target dissenting voices, journalists, researchers, civil society actors and human rights defenders. As we have already seen, such provisions readily lead to self-censorship and chilling of legitimate speech and conduct, in respect of matters of public interest on which open debate is vital,” he concluded.