All You Need to Know About Hong Kong’s National Security Law
During the emotional rollercoaster that has been 2020, we have collectively ventured into an uncharted territory of history thanks to the global pandemic of COVID-19. This immense divergence from normality has been particularly poignant for the residents of Hong Kong who, in addition to the virus, have experienced a series of events of great historic magnitude that have resulted in a city with a dystopian setting akin to George Orwell’s 1984 novel. In the span of a year, starting from June 2019, Hong Kong has been rocked with protests against the now shelved extradition bill; the first, second, and third waves of the coronavirus; and with the recent enactment of the controversial national security law. Despite the resulting climate of tension, due to more than just the virus, Hong Kong has remained standing. Standing, yes, but the city has also remained in a state of tension that is unlikely to end anytime soon due to the ramifications of this controversial security law that will continue to be felt by all facets of Hong Kong society for the foreseeable future.
In order to better understand the complexity of this security law and this predicament between Hong Kong and Mainland China, it would be prudent of me to first provide a brief historical context. Under the Treaty of Nanking in 1842, Hong Kong was ceded to Britain ‘in perpetuity’ (as stated in the original treaty); this essentially opened Shanghai, Canton, and other such ports to English traders. Hong Kong remained a territory of the British Empire until the handover in 1997 when the city was returned to China. Within this handover agreement, Hong Kong was guaranteed certain civil liberties and freedoms which are currently protected under legal documents such as the Sino-British Joint Declaration Treaty and the Hong Kong Basic Law, which serve to uphold the constitutional principle of ‘one country, two systems’. In order to further safeguard such rights and privileges from external influences, an independent judiciary system was established to allow the city’s justice system to act separately from other branches of government. This arrangement (set to expire in 2047) means that Hong Kong exists as a special administrative region controlled by Beijing, wherein Hong Kong is permitted a sense of limited autonomy with a limited democracy.
As a result of this unique dichotomy coupled with the freedoms of speech, press, association, and assembly that were promised in the Basic Law, young snake people have been raised with strong moral principles in relation to democracy dissimilar to the childhoods that were experienced by older Hong Kongers, prompting polarised sentiments regarding individual freedoms. Such principles have acted as a substantial driving factor for youth participation in pro-democracy protests since 1997, notably in the Umbrella movement in 2015, the anti-extradition bill protests in 2019 and now the anti-national security law protests in 2020. Thus, this sense of autonomy from the mainland has meant that any socio-political issue that is brought up is automatically divisive in nature amongst the different demographics within Hong Kong, with a palpable divide and tensions between the younger and older generations.
So what exactly is this national security law and what are the implications involved? The national security law or 國家安全法 (gwok ga on chyun faat as pronounced in Cantonese) was passed at exactly 23:00 on the 30th of June; an hour before the 23rd anniversary of the 1997 handover. Under the national security law, any act regarding secession, subversion, terrorism, and collusion with foreign and external influences may be criminalised if found to be a threat to Hong Kong’s national security. Such acts may include but are not limited to: damaging public transport facilities, advocating for countries such as the U.S to sanction the CCP and Hong Kong government, inciting hatred towards the CCP or the Hong Kong government, or providing “financial assistance” (as written in the law) through donating to organisations that publicly support Hong Kong freedom fighters. Any of such actions may be considered as acts of terrorism or subversion.
These acts, depending on the severity of the offence, shall result in a minimum prison sentence of 3 years and a criminal fine, with the maximum being life imprisonment. Other key provisions of this new sweeping security law have attracted attention from major news outlets such as the BBC and CNN, including the establishment of a new security office with the authority to send certain cases to be tried in mainland China, complete with its own law enforcement personnel acting for the sole purpose of safeguarding national security. Concerns have also been raised over the autonomy of the judicial system and whether it is at stake, with the Chief Executive now having the power to “designate a number of judges to hear national security cases”, and the ability of the justice secretary to decide whether or not a judge is necessary. Moreover, a particular point of interest has been Article 38 of this new legislation, which states that the city’s national security law will apply to non-permanent residents. This means that the law will be applicable to every individual, including those outside of or not from Hong Kong.
After the 1997 handover, Hong Kong has always expected to enact its own national security law as set out in Article 23 of the Basic Law. However, the law was never enacted after it was proposed in 2003, as a result of the significant unpopularity and opposition that was voiced by over 500,000 protestors during the July 1 marches of that year. Consequently, the proposal was axed by then Chief Executive Tung Chee-hwa. Since 2003, however, Hong Kong has seen a new Chief Executive and several political movements, which have all culminated into the situation we have at hand. So, how is it that the security law was able to be enacted this year? Under normal circumstances with the Basic Law, Beijing cannot impose laws upon Hong Kong unless said laws are listed in a section called Annex III. According to Article 18 of Hong Kong’s Basic Law, Annex III essentially allows for Chinese national laws to be valid in Hong Kong. As such, the Standing Committee of the National People’s Congress (NPSC) of the PRC was able to unanimously pass the National Security Law this June, listing it under Annex III, hence bypassing the city’s parliamentary system.
In an effort to halt protests against the extradition bill—which would have allowed countries such as China, on the basis of any claimed offense, to extradite people from Hong Kong--that eventually evolved into a more aggressive, anti-China and pro-democracy movement with the slogan of ‘5 demands, not 1 less’, the national security law was introduced in order to restore ‘stability’. Despite the fact that the national security law includes a broad set of provisions and was always meant to be enacted, the practical effect this law has had in terms of suppressing the pro-democracy, anti-China movement has been undeniable.
It’s important to note that the new security law doesn’t just affect the freedom fighters that have dominated Hong Kong news and social media for the past year. Political dissidents both abroad and in the city are now under threat of being persecuted by the national security law as a result of its broad scope. Critics have claimed that this new law signifies serious encroachments on the rights that were guaranteed during the handover agreement, as well as acting as an outright violation against the systems that were put into place to safeguard said freedoms, namely the ‘one country two systems’ principle. Joseph Borrell, the European Union High Representative for Foreign Affairs has labelled the law as ‘[China’s] attempt to curtail Hong Kong’s freedoms’ and has even emphasised on the importance of the city’s ‘high degree of autonomy as enshrined in the Basic Law’, while Mike Pompeo, the US Secretary of State, has called it the ‘CCP’s destruction of free Hong Kong’. In contrast, Zhang Xiaoming of China’s Hong Kong and Macau Affairs Office has said that the law will ‘be the bedrock underpinning the prosperity and stability of Hong Kong’, with Chief Executive Carrie Lam reaffirming that the law will restore the city’s status as one of the safest in the world. Although such a polarity in opinion does reflect the fundamentally divisive nature of this new national security law, it is indisputable that its provisions and subsequent impacts will be felt for years to come.
The first controversy that aroused suspicion and exacerbated the apprehensions of Hong Kongers was the fact that only a select few had seen the full text of the law before its enactment. The current Chief Executive was not privy to viewing the details of the 66 articles. In addition to this confidentiality, critics and locals alike have become increasingly concerned with the vague wording of the law. Legal experts such as the ‘NPC Observer’ (a team of legal experts from the United States and Hong Kong) have pointed out a prominent concern of the national security law in which certain criminal provisions have been left so broad, subjective, and open to interpretation that such malleable provisions could be capitalized on at the expense of locals’ freedom of expression. Therefore, a simple tweet or Facebook post advocating for Hong Kong independence could be interpreted as a violation of the national security law as an act of subversion or secession. This has led to a massive tide of self-censorship where many have been intimidated into submission, with VPN companies gaining an unprecedented number of enquiries—such as with NordVPN, which received 120 times more downloads in the span of a day during mid-May when the law was announced. Facebook posts have also been deleted, pro-democracy pages unfollowed, and topic-sensitive books have been pulled off of shelves.
Hours before the enactment of the national security law in June, Chief Executive Carrie Lam promised the UN human rights council that not only would the law not undermine Hong Kong’s autonomy or judicial independence, it would also not be retroactive. On both accounts, critics have reported these promises to be false. It is also pertinent to note that some have interpreted this discord between promise and reality as an indication that even Chief Executive Carrie Lam may find it difficult to navigate the many complexities of this national security law. Most agree that this new law grants Beijing unparalleled and extensive new powers to use mainland China’s criminal system as an influence on Hong Kong’s common law system. Additionally, assurances that the law would not be retroactive (i.e. it will not impact events from before the law was enacted) have since been refuted with implications from the arrest of Tony Chung age 19, convener of Student Localism, on the 30th of July. Chung, along with 3 other members, ages 16 to 21, of the group had been arrested on charges of suspicion of inciting secession. Since Student Localism was a pro-democracy group that was disbanded before the enactment of the national security law, these students’ arrest shows that it is possible to be charged for crimes carried out before the 1st of July 2020. As this precedent shows, anyone who violated the national security law before its enactment could be at risk of arrest by state agents from the National Security Bureau. These are likely the first of many retroactive arrests to come. This additional feature of the national security law only serves to heighten tensions within Hong Kong society.
Alongside the law’s striking impact amongst Hong Kong locals, there has also been a profound effect on the corporate and international community. Numerous corporations, notably tech companies such as Facebook, Twitter, Zoom, and WhatsApp have recently announced that they will temporarily refuse data requests made by the Hong Kong government. Other VPN companies have also decided to take a stand for digital privacy in response to the national security law by shutting down their servers in Hong Kong, citing the safety of their users. In particular, Tiktok, an app owned by Chinese corporation ByteDance, even affirmed in early July that they would be halting operations in Hong Kong, thereby making the app inoperable to any users in the Hong Kong market.
On the international front, the implications of the legislation have drawn strong criticism from democratic countries, prompting a series of responses ranging from a condemnation of Beijing’s actions to changes in legislation regarding Hong Kong. The UK had initially encouraged Beijing to honour the provisions under the Sino-British Joint Declaration of preserving Hong Kong’s autonomy and British-style governance until 2047 by backing down on the national security law. Since the enactment of the law, the U.K has announced measures to extend BNO rights (British National Overseas) as a route for British citizenship viable for 3 million Hong Kong residents. On the same front, in its annual report on Hong Kong, the EU has stated that they will not ‘simply stand back and watch as Hong Kong’s freedoms are curtailed’ under the new national security law, with a ‘comprehensive and coordinated’ response in the works. Similarly, the U.S. has expressed its disapproval, with House Speaker Nancy Pelosi emphasising that the purpose of this new law is to ‘frighten, intimidate and suppress Hong Kongers who are peacefully demanding the freedoms that were promised’, further emphasising that all freedom-loving people should ‘condemn this law’. Pompeo repeatedly expressed such sentiments on the 20th of May, when he announced that the US would no longer consider Hong Kong as being autonomous from China, thereby withdrawing the preferential treatment that Hong Kong had enjoyed under the 1992 United States-Hong Kong Policy Act.
Whilst this has prompted condemnations from both the Chinese and Hong Kong governments, the protestors of the city are more than pleased with this course of action and hope that this may prompt other countries to revoke their preferential treatment towards Hong Kong in an attempt to sabotage China’s economy, which may be described as lam chau (a form of Cantonese slang for ‘mutually assured destruction’). Lam Chau is especially evident in a recent survey online which polled 370,000 residents and showed an approval rating of 80.4% for the U.S.’ policy. Prospects are beginning to brighten for the protesters’ desire for lam chau, as at the time of writing, Chief Executive Carrie Lam and ten current and former Chinese officials have been sanctioned by the U.S. for ‘policies of suppression’ in Hong Kong for the imposition of the national security law. The U.S. has also suspended its extradition treaty with Hong Kong, citing concerns over Beijing’s ‘decision to impose the national security law, which has crushed the freedoms of the people of Hong Kong’ (State Department spokeswoman Morgan Ortagus); Australia, Canada, New Zealand, Germany, France, and Britain have also followed suit in recent weeks.
The significance and effects of Hong Kong’s national security law are clear. In the span of a few months, we have already witnessed events totally alien to Hong Kong’s nature under this new legislation. Not only have protesters been stunned into silence with a sword of Damocles hanging over their heads, but the corporate and international community have also faced enormous difficulties while navigating through this 1984-esque Hong Kong. The city has very quickly undertaken a transformation that has put its civic political identity and its status as Asia’s leading global business centre at risk with the newfound ability of authorities to enforce more pervasive and stringent rules on education, the media, and in politics, thereby jeopardising the freedoms of speech, press, association, and assembly that Hong Kong has been known for. Although this period of political unrest is unlikely to end anytime soon, the security law’s impact on Hong Kong and its international relations thus far acts as an indication that any further effects will be irrefutably felt. The consensus is clear for both sides that Hong Kong’s future remains uncertain.
References
- Tsang, S (2004), A Modern History of Hong Kong
- Grace Tsoi and Lam Cho Wai, Hong Kong security law: What is it and is it worrying?, BBC, https://www.bbc.com/news/world-asia-china-52765838
- Hong Kong Free Press, In full: Official English translation of the Hong Kong national security law, https://hongkongfp.com/2020/07/01/in-full-english-translation-of-the-hong-kong-national-security-law/
- Kris Cheng, Hong Kong gov’t could work with new Liaison Office director to restore ‘stability’, says Chief Exec. Carrie Lam, https://hongkongfp.com/2020/01/07/hong-kong-govt-work-new-liaison-office-director-restore-stability-says-chief-exec-carrie-lam/
- Ng Kang-chung, Hong Kong national security law: EU plans ‘comprehensive and coordinated’ response over legislation, foreign affairs chief says, https://www.scmp.com/news/hong-kong/politics/article/3094311/hong-kong-national-security-law-eu-plans-comprehensive-and
- Mike Pompeo, CCP’s Orwellian Censorship of Hong Kong, https://www.state.gov/on-the-ccps-orwellian-censorship-on-hong-kong/
- BBC, Hong Kong’s new security law: Why it scares people, https://www.bbc.com/news/world-asia-china-53256034
- Bloomberg, Following Hong Kong security law news, NordVPN and other VPN downloads see surge, https://www.scmp.com/yp/discover/news/hong-kong/article/3085601/following-hong-kong-security-law-news-nordvpn-and-other
- BBC, Hong Kong security law: Four students arrested for ‘inciting secession’, https://www.bbc.com/news/world-asia-china-53585747
- Paul Mozur, In Hong Kong, a Proxy Battle Over Internet Freedom Begins, https://www.nytimes.com/2020/07/07/business/hong-kong-security-law-tech.html
- BBC, Trump ends preferential economic treatment for Hong Kong, https://www.bbc.com/news/world-us-canada-53412598
- RTHK, UK wants HK rights protected, Pelosi urges action, https://news.rthk.hk/rthk/en/component/k2/1535046-20200701.htm
- Jacob Froner, SCMP, US suspends its extradition treaty with Hong Kong over China’s national security law, https://www.scmp.com/news/world/united-states-canada/article/3098043/us-suspends-its-extradition-treaty-hong-kong
