China – Hong Kong National Security Law
This Blog is written by Ashutosh Agarwal from National Law University, Delhi. Edited by Saradarasagnya Oleti.
After introducing and submitting a draft resolution in May, the Chinese rubber stamp parliament, also known as the National People’s Congress (NPC) has finally given its approval to the highly controversial national security law for Hong Kong SAR (Special Administrative Region). It was passed by an astounding 2878 votes for one against in the Communist Party-controlled country. The law, if enacted, would make any act of secession, subversion, terrorism, and foreign interference criminal in the current autonomous region. Such a step by China has been met with criticism as it undermines the “one country, two systems” framework and can severely have an effect on the autonomy and the freedom of speech and expression awarded to it.
Hong Kong was taken over by the British in the year 1842 towards the end of the Opium War (1839-1842). As a result of China’s defeat, it was forced to sign the Treaty of Nanjing, which gave control of Hong Kong to Britain, following which Britain secured a 99-year lease for Hong Kong. In 1984, the then Prime Minister of Britain Margaret Thatcher signed an agreement to return Hong Kong back to China under the system of ‘One Country, Two Systems.’
A “mini-constitution” was agreed upon by both parties, which came to be known as the Basic Law. The primary function of such an agreement was to award Hong Kong a certain amount of autonomy along with rights and freedoms not present in the Chinese mainland. Liberties included a free market economy, setting up of a local legislature along with free speech and an independent judiciary. However, the people of Hong Kong were not involved in the handover process between China and Britain.
Later in 2003, the first significant protest broke out in Hong Kong. The local legislation attempted to bring in a national security law as per Article 23 of the Basic Law. In response to the massive protest, the government had to reverse the support of the bill. In 2014 during the Umbrella Movement, the city demanded reforms for the electoral system and took to the streets in support of democracy with free and fair elections. In recent times, the protests had taken a higher magnitude when the government introduced a legislation that enabled suspects to be sent to the Chinese mainland for trial. This extradition bill brought a million people on streets protesting against the proposed bill resulting in damage to property, including Leg Co (legislative council) chambers.
As the draft bill was passed in the third session of the National People’s Congress (NPC) to enact and enforce a national security law in Hong Kong, it invited support as well as criticism from around the world. Several countries urged China to refrain from such actions, which endanger the autonomy given to Hong Kong by the Basic Law. United Kingdom, Canada, and Australia issued a joint statement saying that such a proposal undermines the principle of ‘One Country, Two Systems ‘promised at the time of the handover. Similar reactions were observed from the European Union and Switzerland, while Japan summoned the Chinese envoy over this issue. U.S. Secretary of State Mike Pompeo termed the proposed law as a “death knell” for the autonomous character of Hong Kong. On the other hand, countries like Russia, Iran, and North Korea have come out in full support of China’s steps towards Hong Kong, citing it as an internal issue for the country.
However, looking at the history and culture of Hong Kong, it has always been a city of protests. The people of Hong Kong have been a part of many major protests, and such a method has worked well for them. In 2003, the local legislature tried to enact the national security law. However, by the efforts of the protestors, the law never saw the daylight. However, now, Beijing has taken matters in their own hands. A similar situation was there in the 2014 Umbrella Movement, which was about the right to universal suffrage and fair elections. Even when Hong Kong was part of the British territory, the government was very open to listening to protestors as it followed the ideas of maintaining social peace.
There is a considerable amount of fear amongst the Hong Kongese that a national security law will prove disastrous for the current autonomous region. China is widely famous for its rather arbitrary and undefined legal and administrative provisions. From unreported human rights violations, strong censorships, ill-treatment by law enforcement authorities, silencing pro-democracy advocates are some of the draconian measures implemented by the ruling Communist Party in China. If the proposed national security law is passed, there lies a high-risk of Hong Kong getting in a position of being under the dominance of Beijing. A similar situation like mainland China will not be too far from now, a situation where trials involving national security are conducted away from the eyes of the public and media, and no one is aware of the allegations against the accused.
So, the question arises, why is China taking the initiative to enact the national security law for Hong Kong, after 23 years of getting its control. As stated above, Hong Kong has been a centre for protests and multiple protests, along with a failed attempt by the local government to enact the said provision. China does not want to see another wave of pro-democracy protest, which is regularly increasing in the region.
Even as Hong Kong got its independence from the British not too long ago, it is one of the greatest success stories of Asian economic development. Hong Kong is a significant financial hub, not just for Asia but for the world. A crucial market for the world, Hong Kong’s stability is crucial in these times. As soon as the news broke out about China’s new security law for Hong Kong, the Hang Seng Index (HSI) took a drop of about 5.6%, its worst since 2015. Along with the stock market, its global counterparts were also affected with the oil sector also taking a hit. This poses a great threat to world business and trade mechanisms in this situation with an added factor of the ongoing trade war between China and the USA. US Secretary of State Mike Pompeo has already said that such legislation could hamper the “favourable” trade relationship shared between Hong Kong and the USA along with sanctions on China.
However, the more significant impact is supposedly towards the people of Hong Kong. China’s arbitrary legal provisions and practices are known to people, which make it a great concern for the people of Hong Kong. In one of the protests in response to the NPC’s move to enact a national security law, people were seen comparing Hong Kong with Xinjiang and Stanley with Qincheng, which are maximum-security prisons in Hong Kong and mainland respectively, whereas, Xinjiang is the site where ongoing mass detention and surveillance is targeting the Muslim minorities. If a law designed by China is brought into force, which can be used to undermine civil liberties and suppress political activity, including dissent and pro-democracy voice, it can be said that Hong Kong’s autonomy is under risk. China is already widely criticised for implementing practices like social media censorship, illegal detention, using forces against human rights principles, or being prosecuted and jailed for exercising guaranteed human rights under local laws. Now, these threats could soon become real for the current autonomous and rather free Hong Kong.
In the year 2015, Tashi Wangchuk, a Tibetan activist appeared on a New York Times video. Later in 2016, he was detained by China and sentenced in 2018 for five years. The reason given was “inciting separatism”, while actually, he only demanded China to comply with their laws and protect the Tibetan language in Tibetan populated areas. Similarly, Cao Shunli, a Chinese human rights activist was taken in by the police before she could board a flight to the UN Human Rights Council (UNHRC) session in Geneva. She was detained for six months and was denied medical treatment, and eventually died. “It seemed she had simply been left to die in her cell.” She was given such treatment just because of her information submitted about the extra-legal detention and tortures to the United Nations. Cases like these are a cause of worry to Hong Kongese and explain the protests against the Chinese made law for them.
Media freedom is unheard of in the mainland because of the strict control of the government over it. On the other hand, Hong Kong is a more autonomous region that has ensured that such draconian measures do not trickle down to them from the mainland. However, with the recent scenario changes, the effect of the mainland and reduced autonomy can be felt. Radio Television Hong Kong (RTHK) just before the announcement of the draft bill of the national security law for Hong Kong, had to cancel a satirical current affairs show “Headliner” for unspecified reasons and thus ending the streak of 31 years. RTHK was founded in the year 1928 and till date, is the only independent publicly funded media outlet operating in China. Leung Ka-wing, the director of broadcasting, who made his name in journalism during the 1989 Tiananmen Square massacre, took such a decision to “protect RTHK” and the staff which it employed. Headliner had previously drawn complaints because of making fun of the Hong Kong police in February.
The fear of free media getting silenced by the government is more than ever after the recent events. There are fears among the media houses that Hong Kong will be turned into mainland China, where the government and the ruling Communist Party decides the content of the media, including harsh censorship of pro-democracy and anti-government views. According to the Committee to Protect Journalists, in the year 2019, 48 journalists were imprisoned by China, the highest in the world. Such measures threaten the media freedom, which Hong Kong currently enjoys and are granted to it by Article 27 of the Basic Law, the agreement between China and Britain when the transfer of control took place in the year 1997.
Hong Kong is just not financially strong but also a highly developed region. According to the Global Competitiveness Report 2019, Hong Kong ranks first in macroeconomic stability, health, financial system, and product market – the most for any economy worldwide. On the education front, in OECD’s PISA 2018 survey, Hong Kong came 4th out of 79 member countries in 2 out of 3 subjects, indicating a high level of education among Hong Kongese kids. Moreover, Hong Kong’s GPD per capita ($62,727) is at par with the USA (62,887) but very ahead than Japan ($41,473) and the UK ($46,868).In its fight against the COVID-19 pandemic, the region has done exceptionally well, with just 1,107 cases and four fatalities. In this situation, Hong Kong seems to be a prosperous region that can very well be utilised by China for its benefit if arbitrary national security legislation is brought into place for Hong Kong.
With the above major impacts on the lives of Hong Kongese people, the only option left for them is to migrate out of Hong Kong in order to find a better place to live if in case there are clear signs of Hong Kong getting into the grip and control of the mainland China. Citizens feel that the law would impact their freedom of expression and speech. Taiwan has extended its support to provide a safe haven to anyone requiring help while fleeing Hong Kong. China has already responded to Taiwan and threatened to use all available measures against it, though, non-peaceful methods would be the last resort. UK’s Foreign Secretary Dominic Raab has already said that the UK would allow British National (Overseas) passport holders from Hong Kong to stay in the UK for 12 months instead of the previous six months. This opportunity is open to approximately 2.9 million Hong Kong residents, including those who are eligible for the status but did not obtain it.
As stated above, during the handover of Hong Kong to China, the Basic Law was agreed to act as a mini-constitution to govern what is known as Hong Kong SAR (Special Administrative Region). Article 23 of the Basic Law requires the local government to enact a national security law “on its own.” During 2003, an attempt was made, but the government was unsuccessful due to mass protests. However, now after multiple protests, the Chinese government has taken the task in their own hands and are using a backdoor in the Basic Law to enact the law in their capacity and bypassing the local government by including the law in Annex III. Laws included under Annex III do not require the vote of the legislative council. Hence, the constitutionality of enacting a national security law that will be inserted using Annex III is being disputed by the Hong Kong Bar Association (HKBA).
As per Article 23, national security lies well within the jurisdiction of Hong Kong. However, the NPC is using Article 18(3), which says that Annex III will only contain laws “relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region”. The Department of Justice still argues that national security is well within the ambit of Annex III and has defended its stance.
The draft of the law, which is named “Decision of the National People’s Congress to Establish and Improve Legal Framework and Enforcement Mechanism for Safeguarding National Security in the Hong Kong Special Administrative Region”, has seven articles. Article 1 reinforces the principle of one country, two systems, while Article 6 authorises the NPC to formulate national security legislation for Hong Kong SAR and then include it in Annex III of the Basic Law.
The recent developments coming from China and Hong Kong are certainly concerning. Formulating a national security law is not something that is done regularly by the political framework of a state. National security is a sensitive matter not only for the country itself but for its neighbours, and sometimes it can even have a broader impact worldwide. Hong Kong is a financially strong and developed market that has enjoyed many exceptions when compared to mainland China. The security law, which, if imposed, can be a positive as well as a negative step for the region. As the law is still in its initial stages, speculating its results would not be the right approach to it. However, there is still a need for Hong Kongese to be alert and watch out for the developments because the more significant impact would be on their shoulders. Being a financial hub, it needs to protect its interests in this vital sector in the current political turmoil. Moody’s has recently downgraded Hong Kong’s rating from “Aa2” to “Aa3” as its perspective on the local institutions and governance is “lower than previously estimated”.
On the other hand, the Hong Kong crisis can affect the ongoing China-USA trade war. The USA has already threatened China with sanctions if it proceeds with the proposed legislation, and thus, the relations between the two countries are now lower than ever before. Adding to the bitter relations, in March, China revoked media credentials of several American reports while United States reduced the number of journalists allowed to work in Chinese state-owned media outlets in the USA from 160 to 100. The result of US-China relations and the fate of Hong Kong are still far away but something to be concerned about.
For now, Hong Kong still has a long way to go. The draft bill has just been passed, and a detailed law would follow shortly. Hong Kong’s Chief Executive Carrie Lam has repeatedly ensured Hong Kongese that the proposed law is a “responsible” move, aimed at protection and for the greater good of Hong Kong. She has denied of all the speculation regarding the law being a threat to the region’s autonomy and freedom of its citizens. Supporting China’s stand, HSBC and Standard Chartered have come out in full support, though it should be noted that both of them have a major business presence in China and Hong Kong being a strong financial centre. However, looking in a broader perspective, the timing of such a decision could not have been better for China keeping in view the ever-growing COVID-19 pandemic. Only time can tell the fate of Hong Kong, whether it will emerge out as a strong independent region or will the proposed legislation pose a negative impact on its autonomy and freedoms. However, there is no denying the fact that a threat is lingering over Hong Kong and if, such a situation where its people need help arises, the only question that remains to be answered is where they will find a helping hand for their fight in their quest of freedom and free expression.
 Global Competitiveness Report 2019 (World Economic Forum, 2019).
 Programme for International Student Assessment (Organisation for Economic Co-operation and Development, 2018).