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Utkarsh Singh

Swapnali Namdev

July 16th, 2020

Decoding China’s draconian national security law for Hong Kong

1 comment | 2 shares

Estimated reading time: 10 minutes

Utkarsh Singh

Swapnali Namdev

July 16th, 2020

Decoding China’s draconian national security law for Hong Kong

1 comment | 2 shares

Estimated reading time: 10 minutes

While the world is preoccupied with its responses to COVID-19, China has tightened its grip on Hong Kong. On 30th June 2020, China unveiled a controversial new law. The Chinese legislature unanimously approved the law within hours of the anniversary of Hong Kong’s handover to China. Last year, that anniversary’s commemoration drew pro-democracy protests that escalated into confrontational challenges to the Chinese administration. In the last year, protesters vandalised subway systems and police stations, and they surrounded government buildings.

This year, the law’s expeditious approval signalled Xi Jinping’s urgency to expand the Chinese government’s control over Hong Kong and to quash pro-democracy protests.

The new security law’s aim is to quell the anti-government protestors’ disruptive strategies. The four ambiguously-worded major offences in the law—Secession, Subversion, Terrorism, and Collusion with Foreign Countries, each of which is punishable with lengthy jail terms—authorise extensive efforts to suppress state criticism.

Secrecy shrouded the details of the new law. Even Hong Kong’s Chief executive had not seen drafts until the law’s publication on 30th June, 2020, at which point the law took immediate effect. Multiple countries including the U.S., Britain, Canada, Australia, Japan and Switzerland sent China a flurry of warnings after the law’s implementation. The warnings heightened when Secretary Pompeo announced that the U.S. State Department no longer considered Hong Kong autonomous. Together, escalating foreign tensions hint at possible political sanctions and cancellation of Hong Kong’s special immigration and trade status.

The law advises companies, organisations and individuals conducting business in Hong Kong to pay special attention to the pecuniary and financial assistance or property they provide to others. It also stipulates that whoever incites, assists, abets or provides monetary or other financial assistance or property for the commission by another person of the offence of secession and subversion shall be guilty of an offence and shall be sentenced to imprisonment of not less than 5 years. The law criminalises, with terms of imprisonment not less than 5 years, support to a terrorist organisation or terrorist in forms such as training, weapons, information, funds, supplies, labour or venues.

As a matter of political sovereignty, the new national security law blurs the distinction between Hong Kong’s semi-autonomous legal systems, which had maintained aspects of British law after the 1997 handover. Bolstering its presence in Hong Kong, China will establish a new “Office for Safeguarding National Security”, which will subsume jurisdiction from the city’s independent law court if a case involves a foreign country. In cases that the office takes, mainland China will appoint prosecutors as well as adjudicators and Chinese procedural code will apply in courts administered behind the closed doors.

Under the one country two system” formula, China agreed to protect Hong Kong’s freedom, autonomy and independent legal system when it was handed over in 1997. A mini-constitution called the Basic law has since governed the relationship between Hong Kong and China. The same Basic law allows Chinese law to supersede Hong Kong’s under limited conditions. The mechanism is mostly used for anodyne matters such as questions concerning the national flag or to assert Beijing as the capital.

Hong Kong’s Basic law limits China from applying national laws to the territory except in matters of defence and foreign affairs. The Chinese government’s new law—which bypasses the legislative council, Hong Kong’s law-making body—challenges them all. Indeed, Articles 3 and 4 of the law affirm Hong Kong’s obligation to enact China’s national security law. The new law also undermines Hong Kong’s guarantee of an independent judiciary, which China was obligated to uphold under the 1984 Sino-British joint declaration that handed Hong Kong back to China. China is also a signatory to the International Covenant on Civil and Political Rights, whose protections ostensibly apply in full to Hong Kong, although the new security crimes may well fall short.

With its new security law, China has authorised expansive powers to wrest Hong Kong’s legal affairs from local lawmakers and courts. The National security Law threatens the rule of law that international human rights standards and Hong Kong’s Basic law promised to protect.

Note: This article gives the views of the authors, and not the position of the Social Policy Blog, nor of the London School of Economics.

About the author

Utkarsh Singh

Utkarsh Singh is a second year student at the National University of Study and Research in Law, Ranchi. Utkarsh has an interest in the field of International Humanitarian Law, Maritime Law and Constitutional Law.

Swapnali Namdev

Swapnali Namdev is a second year student at the National University of Study and Research in Law, Ranchi Swapnali is interested in International Humanitarian Law, International Human rights and Constitutional Law.

Posted In: Current Debates | International Social and Public Policy

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