The Hong Kong Special Administrative Region (HKSAR) has been marked by widespread public protests for the past year, starting in June 2019 with a march against the extradition bill and closely followed by protests against the National Anthem Bill in January 2020. On May 28, the National People’s Congress (NPC) of the People’s Republic of China (China) approved a draft for a new national security legislation (NSL) for HKSAR, which sparked renewed protests. The NSL drew instant criticism from the International Commission of Jurists. It was also condemned in a joint statement issued by Australia, Canada, the United Kingdom and the United States, which described the NSL as a violation of the liberties of HKSAR residents undermining the “one country, two systems” policy (Instrument 9 to the Basic Law of HKSAR). Given this new reality, what are the implications of this new policy? Was such a law a necessity in the current circumstances or only a measure to tighten the leash on the semi-autonomous region?
Legal background: Hong Kong-China relations
The relationship between China and the HKSAR is based on the 1997 Joint Declaration of the governments of the United Kingdom and China. Paragraph 3 of this declaration states that “HKSAR shall enjoy a high degree of autonomy, except in foreign and defence affairs” and that “the maintenance of the public order in HKSAR shall be the responsibility of HKSAR”. However, paragraph 1 states that China shall exercise sovereignty and direct authority over Hong Kong, thus creating a relationship of “one country and two systems”.
Article 23 of the Basic Law of the HKSAR requires the Hong Kong government to pass laws against acts of treason, secession, sedition or subversion. However, the HKSAR Legislative Council (LegCo) has been unable to pass any comprehensive legislation, as its attempt in 2003 failed due to lack of political support within the LegCo after public protests in July. On account of this alleged legislative vacuum, China has approved the NSL, thus bypassing HKSAR’s autonomy. However, the increased Chinese control over Hong Kong is nothing new – in fact, since 2019, China has attempted to implement new legislation in Hong Kong on several occasions.
The planned 2019 extradition bill tried to implement extradition provisions for prosecution of Hong Kong residents in mainland China. However, the HKSAR government withdrew the bill due to the widespread demonstrations that ensued. Unlike the extradition bill, the LegCo passed the controversial National Anthem Bill in June 2020, amid public outcry. The law criminalizes disrespect of the Chinese national anthem, perceived as a symbol of Chinese occupation and oppression by many in Hong Kong. The enactment thus also bans Hong Kong’s unofficial national anthem (March of the Volunteers), previously used as a sign of resistance against Chinese governance. Despite protests over the past year, it seems that China is only increasing its legal authority and control over the semi-autonomous region, through the recent NSL and potentially future legislation to come.
The Final Nail in the Coffin?
On 30 June, the NPC passed the NSL thereby imposing a sweeping law to curb revolutionary activities in Hong Kong. The statement of the Chief Executive highlighted that the law targets “acts of secession, subverting state power, terrorist activities and activities interfering with the HKSAR’s internal affairs by external forces”. The law also enables China’s national security institutions to set up intelligence agencies in HKSAR allegedly to safeguard national security. Following its implementation, the law was sharply criticised by the international community. The UN Human Rights Council warned that its vague and broad terminology might allow for arbitrary interpretations and condone human rights violations. Amnesty International categorised the law as a “weapon of repression”, while the EU described it as “seriously undermining the high degree of autonomy of Hong Kong”. Despite this, China and the HKSAR government appear to be standing their ground.
No legislative vacuum
According to China, there is no security legislation under Hong Kong’s Basic Law. However, this is far from the truth. In April 2020, HKSAR’s Secretary of Security admitted that the regional government does have a series of laws covering issues of national security, including the Public Order Ordinance 1967 (PO Ordinance), the Crimes Ordinance 1971, and the 1999 Emergency Regulations Ordinance. This legislation already implements the objectives of the NSL, indicating that the aim of this new legislation may instead be to suppress pro-democracy protests in Hong Kong and ensure the future integration of the region into China. In that sense, the NSL appears to be little more than a strategic attempt at policing political expression, part of a wider strategy by the Chinese government that may go far beyond national security itself.
Chilling effect on freedoms
In targeting the acts of subversion, secession and terrorism, the NSL infringes upon freedoms expression and peaceful assembly. The use of broad terminology without clear legal application will undoubtedly serve to curtail freedoms, as has already happened in mainland China. Indeed, the crimes outlined in the new legislation may include peaceful protests and marches as acts of subversion. Moreover, the NSL makes no distinction between inciting subversion and direct acts against the government, thus broadening the scope of its application and creating further room for misuse. The NSL (Art. 29) also criminalizes sharing state secrets or intelligence with foreign organizations, citing connections with foreign entities as interference into internal political affairs. If this rule is to be implemented, this would effectively cut-off Hong Kong from the international community and thus put its residents behind China’s so-called “iron curtain”.
Finally, the NSL encroaches upon the democratic separation of powers. Indeed, the prosecution of crimes relating to national security will be overseen by a panel of judges appointed by the Chief Executive in consultation with the Office for Safeguarding National Security of Central People’s Government in Hong Kong (Office for Safeguarding National Security of CPG in HKSAR), a body supervised by and accountable to the Chinese government. Prosecutions may even be conducted by the Supreme People’s Procuratorate, a Chinese investigation agency. Law enforcement has also been given exceptional powers of search and seizure and may now carry out ‘covert surveillance’ of suspects.
Direct control through intelligence agencies
The new legislation also allows Chinese intelligence agencies to carry out direct surveillance and information-gathering within Hong Kong. While Hong Kong’s Basic Law (Art. 22) states that no department of China’s government shall interfere with its internal affairs, Chinese officials have refused to characterize the Hong Kong and Macau Affairs Offices (HKMAO) as “departments”. Through this manipulation, Chinese intelligence agencies may now administer security and surveillance operations in Hong Kong.
Indeed, Article 17 of the NSL allows for the creation of a special department within the Hong Kong government to collect and analyse security-related intelligence. As with the NSL’s judicial body, the head of this department is to be appointed by the Chief Executive in consultation with the Office for Safeguarding National Security of CPG in HKSAR. The Office is listed as beyond Hong Kong jurisdiction, thereby placing it outside the reach of judicial review. Through the NSL, the Chinese government may now effectively set up a de facto surveillance system in Hong Kong, thus expanding China’s Big Brother-like society.
The EU Parliament is currently considering taking China to the International Court of Justice (ICJ) on the grounds of its breach of the ICCPR and the Joint Declaration, and governments including the U.S., UK, Canada and Australia have imposed economic and diplomatic sanctions against the country. Unless China bows down to these international pressures, its strategic security legislation will further undermine Hong Kong’s autonomy and severely threaten the liberties of its residents in the process. The contents of the legislation clearly indicate an irreversible shift in Chinese policy towards increased control over Hong Kong, through the expansion and imposition of its legislative, executive and judicial powers over the region. Recently, the Hong Kong government postponed the highly awaited LegCo elections, citing the COVID-19 pandemic as a pretext; however, for the opposition and many outside observers, this moves appears to be a step to prevent the possible downfall of the pro-Beijing government which has fallen out of favour with Hong Kong residents. The NSL appears to be the death of the pro-democracy voices in Hong Kong that had risen in the last year, as its recent implementation has already led to crackdowns against activists and protests. Prominent activists have swiftly left the region and started plans for a parliament in exile. The “one country, two systems” arrangement is supposed to last for 27 more years as per the Joint Declaration; as things currently stand, the end of Hong Kong’s autonomy appears much closer.