Written by Connie Woo
Source: https://time.com/5867000/hong-kong-china-national-security-law-effect/
Background of the law
There have been protests in Hong Kong since early June of 2019 against the Fugitive Offenders Ordinance. As there were no response to the protester’s petition namely calling for a revocation of the Ordinance until September 2019, the protests became more fierce, and violence arose between the police and the protestors. There were strong condemnation by the Hong Kong government and the Central People’s Government (“CPG”, which represents the Chinese government) to the controversially called “riots of protestors”, but the police brutality on the other hand provoked hatred by the society particularly the youngsters. Consequently, the society was torn apart and the social stability was sacrificed, resulting in news of the protest in the metropolis hitting international headlines. All of the aforementioned incidents raised the CPG’s awareness of the social stability of Hong Kong since it pointed out that the protest has severely devastated the national security which has gone beyond the control of the HK government.
In light of the CPG’s concern, the Standing Committee of the National People’s Congress (“NPCSC”) passed a national security law to be enacted in Hong Kong so as to restore the social stability. Given that under the “One Country, Two Systems” principle, Hong Kong is able to adopt a different system to the mainland with the former adopting capitalism whilst the latter adopting socialism. Yet, the national security law has invoked strong opposition and the anger of the Hong Kong people, who argue that the law is setting “One Country Two Systems” aside, and in particular suffocates the freedom of expression.
This essay will argue why the national security law might not be practicable in Hong Kong by exploring how it was passed, the contents and provisions thereof as well as the consequences of the law.
How did the security law pass
Hong Kong was a British colony until 1997, at which point the Basic Law was enacted. The Basic Law has the highest constitutional order in Hong Kong, and sets out policies such as the “One Country, Two Systems” principle, as agreed in the Sino-British Joint Declaration. Article 23 of the Basic Law states that Hong Kong shall enact its own national security law, however this has never come into force, due to strong objections to previous attempts, such as in 2003 when Article 23 was highly promoted by the local government but was eventually revoked due to a fierce public outrage .
Generally, national law of China should not be enacted nor enforced in Hong Kong. [1] However, according to the same Article, national laws listed in Annex III of the Basic Law act as an exception which can be enforced in Hong Kong. Accordingly, on 30th June 2020, the NPCSC included the national security law into Annex III so as to validify its enforcement. Under the same article, it states that in the event that the NPCSC decides by reason of turmoil within Hong Kong which endangers national unity or security and is beyond the control of the government of the Region, the CPG may issue an order applying the relevant national laws in the Region. This is used by the CPG as the reason to add the national security law into Annex III because it deemed the 2019 protests as “riots”, alleging that they were partially supported by foreign powers with unsound intentions to frustrate social stability since many pro-democratic social activists sought help and support from foreign countries or their human right NGOs which had gone beyond the control of the government.
Whilst the enactment of the national security law shall be deemed lawful and despite the fact that the law was promulgated directly by the CPG rather than being discussed and debated in the legislature in Hong Kong, it is not necessarily legitimate. This will be discussed in further depth later in this essay.
Contents and details of the national security law
The overarching purpose of the national security law is to unify Hong Kong by maintaining its social stability and suppressing any security-threatening activities since Hong Kong is part of China, as set out in Article 1 of the Basic Law. In light of its purpose, the main aim of the security law is to prohibit and criminalise treason, secession, subversion against the CPG, terrorism or activities by foreign forces that interfere in Hong Kong. Secession means breaking away from the country; [2] subversion is to undermine the power or authority of the Central Government; terrorism refers to using violence or intimidation against people.
There are several new departments which the HKSAR is obliged to set up in light of the national security law. First, Hong Kong shall set up a Committee for Safeguarding National Security of the HKSAR, with the Chief Executive as its president. The purpose of this Committee is to analyse, investigate and examine HKSAR’s performance to safeguard the national security as well as formulate policies regarding national security. Secondly, regarding the enforcement of the law, a department with the specific aim of protecting national security shall be set up, with a conferred power to enforce this law. Thirdly, regarding the judiciary, a specialized department for dealing with the crimes regarding the frustration of national security shall be set up. This department will be responsible for prosecution, with its judges appointed by the Chief Executive. In particular, if the case involves the state’s confidentiality or public order, the trial will not have a public hearing, and the jury might not be summoned. For special occasions such as when the local judiciary does not have the appropriate jurisdiction to deal with the case, the Office for Safeguarding National Security of the CPG in the HKSAR set up by the CPG will have the jurisdiction and final say to those cases.
Whilst the national security law as a whole is indeed controversial, certain provisions are particularly contentious. It is worried that all sorts of undertone via social media will be banned so that there may be zero tolerance to any dissatisfaction towards the CPG; Article 29 criminalizes stealing or spying or obtaining with payment or unlawfully providing State secrets concerning national security to foreign countries/institutions. This induces public panic since many local social activists have a close tie with foreign human right organizations and have been interviewed by the foreign press, which could potentially be treated by the CPG as the evidence of slandering the CPG with the use of abhorrent language. International reaction to the situation has provoked responses from foreign countries and institutions. As many Western countries such as the US and the UK hold strong objection to the national security law, they have offered help and even asylum to Hong Kong people. Moreover, many local organizations have strong ties with many foreign human right organizations such as Amnesty. Article 38 states that the national security law shall apply to offences under the law committed against Hong Kong from outside Hong Kong by a person who is not a permanent resident of Hong Kong. Furthermore, Article 60 states that the HKSAR National Security Agency is not subject to the jurisdiction of HKSAR when performing its duty in Hong Kong as to safeguarding national security. In addition to the controversial provisions, the national security law prevails other legislations if inconsistencies are found and NPCSC has the power of final interpretation under Article 158 of the Basic Law. It is therefore apparent that many of the provisions of the national security law lack clarity.
Controversial conflicts between the national security law and the Basic Law
Although the enactment of the security law is apparently lawful, it might nevertheless be non-legitimate. The Basic Law enshrines the constitutional principle “One Country, Two Systems” between Hong Kong and the rest of China - the standard of the freedom and rights enjoyed by Hong Kong people and people residing in the mainland shall be different hence distinguished.
Contrary to what the CPG has advocated, the security law might actually undermine “One Country, Two Systems”. Article 2 of the Basic Law grants HKSAR a high degree of autonomy and that the existing rights and freedom enjoyed before the 1997-handover are preserved except for defence and foreign affairs. Article 22 adds that the PRC cannot interfere in the affairs which the HKSAR administers on its own in accordance with the Basic Law. The security law may therefore have overstepped the appropriate degree of autonomy enjoyed by the Region. The CPG may, of course, hold that national security law is a compulsory law in every country and city. Moreover, the Basic Law, despite having the highest constitutional order in HK, derives its authority from the People’s Republic of China Constitution namely Article 31 [3] thereof which allows the creation of special administrative regions within China including Hong Kong. Nevertheless, Hong Kong’s degree of the restriction on activities which might threaten national security should be different from that of China. It is clearly stated in the Basic Law that the socialism practiced by the PRC is not applicable in Hong Kong where capitalism shall be adopted. Unfortunately, the provisions of the national security law seem to mimic the CPG’s standard and degree of punishment for anti-security activities. It is thus understandable to worry about the merging of Hong Kong’s legal system with that of China’s and can be argued as marking the collapse of “One Country, Two Systems”.
Of equal significance is the frustration of independent judiciary. Per Article 88 of the Basic Law, judges of the Courts of Hong Kong shall be appointed by the Chief Executive on the recommendation of an independent commission. The local Hong Kong courts shall have its independent jurisdiction [4] as well as the final adjudication to the local cases. [5] However, under the national security law, Hong Kong local courts might lose the jurisdiction to hear cases related to the breach of the security law. Rather, the mainland court will be responsible for judging the case. [6] Where the issue of national security is involved, closed-door trials will be held and only judgment will be disclosed. Although this is not applicable to all national security cases, the circumstances under which the case will be handed to mainland courts are still very ambiguous and broad. In other words, the ambiguity may amount to the mainland’s judiciary somewhat taking control over, if not manipulating Hong Kong’s judiciary – the judiciary of Hong Kong will no longer be independent.
It is apparent that the provisions of the national security law contravene the spirit of the “One Country, Two Systems” prescribed in the Hong Kong Basic Law in a way that hampers almost every fundamental and exclusive feature of the Hong Kong legal and social system.
Foreseeable consequences of the security law
Apart from the legal adverse impact discussed above, a particular issue of concern for Hong Kong people is their freedom of expression. In short, they do not have much faith in the Communist Party’s political and legal regime. The PRC has long been notorious for its dealing with human right cases, especially as to offensive speech towards the Communist Party and its advocations. Therefore, it is understandable why Hong Kong people are afraid of being deprived of their freedom of speech.
The 2010 Nobel Peace Prize winner Mr. Liu Xiaobo is an example demonstrating the extent to which China tolerates freedom of speech. Starting from 1984, Liu published articles with bold claims, advocated the need for critical thinking particularly when commenting on the policies of the government. In one article, Liu stated that “tyranny is not terrifying, what is really scary is submission, silence and even praise for tyranny”.7 Liu has also written couples of proposals on how the Communist Party should reform its policies and core values, for example, he urged the CPG to amend its constitution such as to insert fundamental human right provisions and free the press. In view of his promotion of Western style of liberty and his disagreement of the absolute dictatorship of the Communist Party, the CPG accused Liu of the crime of counter-revolutionary propaganda. Liu was imprisoned and ultimately passed away during his imprisonment.
Liu did not organize violent activities to overturn the ruling of the Communist Party but his activities were deemed holding such a purpose. This revealed the relatively low tolerance of opposing voice of the CPG, if to be more explicit: the Communist Party. Many Hong Kong people fear that many of their opinions including social media posts expressing their dissatisfaction with China and protests against the CPG’s policies and the security law will become illegal. Many worry that there will be much more incidents similar to the Causeway Bay Bookstore incident in 2016. Mr. Lam Wing-kee was the owner of a bookstore which sold books on sensitive issues, especially those against the Communist Party. Mr Lam was suspended by the mainland custom when he crossed the Hong Kong-mainland border. He was locked in a room and he claimed that he was forced to admit guilty there by reading out a prepared script under the threat of a mainland director. The incident triggered public outrage as they believe the CPG will keep using secret and abhorrent way to vanish members of the pro-democratic camp. There has long been an anti-mainland culture rooted in quite a lot of Hong Kong people especially the youngsters, many of their expressions are thus somehow offensive and even hostile to the CPG. Therefore, they are worried that they can no longer express their opinions since those words might be deemed illegal from now on.
The extent to which the freedom of expression will be suffocated is still unknown, since the security law has just come into force on 1 July this year. Despite the lack of cases to be dealt with in light of the security law, it should be notable that the protest slogan which had already been used over the past year “liberate Hong Kong, the revolution of our times” had been defined by the government as embodying the meaning of “independence of Hong Kong” and subverting the country, which has become very controversial and the decision leaves much room for reflection by the Hong Kong government. In view of the judgement, many hold further fear that the judges appointed by the Chief Executive will fail to act impartially but will rather gradually depart from precedents. Not mentioning the fact that some trials will be held confidentially as prescribed by the security law, the credibility of the future judgements on national security cases are very questionable.
Conclusion
During last year’s Hong Kong protests, there were admittedly violent behaviours from both the protestors and the police. There are still many different views as to which party should be blamed, but this essay would argue that there might never be an absolute answer to that. However, the fault or controversies of the protests and the enactment of the security law should be two separate issues. Admittedly, national security is prioritized in every country especially countries like China and the US. However, using the US as an example, despite its problem of police brutality, it can be distinguished from China as the state arguably has a higher tolerance for offensive activities and hate speech than China. One could point to the fact that offensive derivative work of Donald Trump is seldom banned in the US, when in contrast Winnie the Pooh is banned in China because the character is suspected of insinuating President Xi Jinping as evidence of the differing levels of tolerance. In other words, it may be argued that the CPG is abusing national security to remove any opposing voice which might threaten the position of the Communist Party. Crucially, this kind of standard which criminalizes people starts applying to Hong Kong and is likely to encroach on the original freedom of expression and rights enjoyed by Hong Kong citizens.
Even if the social stability is frustrated by the protests, the enactment of the security law shall not be a legitimate step towards stabilizing the society since it has contradicted the core spirit of the Basic Law and the law even override the constitutional order of the Basic Law. The Hong Kong Basic Law and the national security law, in other words, are somewhat self-defeating.
Despite all the above discussions, no matter which stance people are with, the enforcement of the security law has become an unchangeable fact. The question of how the security law will change Hong Kong will have to be answered by time.
[1] Article 18, Hong Kong Basic Law
[2] Grace Choi and Lam Cho Wai, “Hong Kong security law: What is it and is it worrying” BBC News (London, 30th June 2020)
[3] Article 31, the Constitution of the People’s Republic of China
[4] Article 85, Hong Kong Basic Law
[5] Article 82, Hong Kong Basic Law
[6] Article 55, the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region
Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.