LONDON – The Chinese authorities claim, with some justification, that the provisions included in the security legislation they are seeking to introduce in Hong Kong are no different from measures which exist in most other countries.
But given differences in history and political circumstances, comparisons are almost impossible to make.
And the way such laws are interpreted and applied is far more important than what the letter of the law says.
Spying, the deliberate leaking of government secrets or advocating the violent overthrow of the established political order – the sort of offences included in China’s new security law for Hong Kong – are crimes in most countries. Yet, many of these offences are either defined in pieces of legislation which are often centuries-old or are inferred from broader constitutional provisions.
However, since most of these provisions are used very infrequently in Western countries, a great deal of uncertainty prevails over whether they are still applicable, or if they have been superseded by subsequent legislation protecting human rights.
That is something Spain recently discovered when it charged Carles Puigdemont, a separatist leader who pushed for Spain’s territorial break-up, with the offences of “rebellion” and “sedition”. The Spanish asked a court in Germany, where Puigdemont was seeking asylum, to extradite him. The court refused, claiming that the offences for which he was charged were too imprecise.
The court ultimately allowed his extradition on the much clearer charge of abusing public funds.
Challenging the national unity of a country by advocating separation is a very serious crime in some nations.
But in Britain, a party advocating the independence of Scotland is the third largest in Parliament.
In Belgium, separation is the topic of everyday political discussion.
Pushing for a change in the form of government – from a republic to a monarchy, or the other way around – is treason in some countries according to their Constitution, but may be regarded as a matter of complete indifference in others.
Britain’s devotion to its monarchy may be legendary, yet few of its traditions of reverence to the monarch are protected by law.
And Australia’s Labour Party, the country’s main opposition, has a shadow minister “for the Republic” while remaining a monarchy.
For understandable historic reasons, Germany is considered as one of Europe’s most fervent upholders of individual freedoms. But, for the same historic reasons, it also aggressively pursues those seeking to change its constitutional order.
Germany is unique in Europe in banning political parties or movements which argue against its Constitution.
In short, there is no universal concept of what security legislation entails. And the problem is not so much with what is in the law books, but who interprets the laws, and for what purpose they are used.