NATIONAL SECURITY LAW AND THE END OF HONG KONG AUTONOMY
Published by: Shruti Kulshreshtha
INTRODUCTION
China has introduced the National Security Law in Hong Kong or, officially known as the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region.[1] It is a legislation enacted by the Standing Committee of the National People’s Congress of the People’s Republic of China (hereinafter referred to as ‘NPCPRC’) and was passed on 30 June 2020. Hong Kong was always authorized to enact a national security law for their country since they had constitutional backing for the same. However, due to its unpopularity and people’s dissent towards such an enactment, it could never be passed. China stepped forward for passing a national security law for Hong Kong, intending to provide a legal framework for the security of the citizens of Hong Kong under the garb of strengthening its authority.
Hong Kong follows the system of One Country, Two Systems where Hong Kong is categorized as a Special Administrative Region (SAR) of China, which has authorized China to make a national security law for Hong Kong in the first place. The law was effectuated at 23:00 on 30th June 2020, which is an hour before the 23rd Anniversary of Hong Kong’s handover to China. People have perceived the NPCPRC’s decision to pass a national security law for Hong Kong, as violative of two primary documents involving China’s obligations. The two documents, Sino-British Joint Declaration on the Question of Hong Kong, 1984, and the Basic Law of HKSAR, 1990 states that Hong Kong will enjoy autonomy in the matters of defense and foreign affairs which shall remain unchanged until the year 2047. The law infringes on this clause of the foundational documents of Hong Kong and also opposes the policy of One Country, Two Systems.
This is not the first attempt made by China to take away Hong Kong’s autonomy since they have witnessed many such actions. During the era of COVID – 19, when countries are busy dealing with their own internal health care issues, China took a cunning step to introduce this law in Hong Kong.
LEGISLATIVE BACKGROUND OF THE NATIONAL SECURITY LAW
The Baic Law is the mini-constitution of Hong Kong. Article 23 of the Basic Law provides that Hong Kong SAR can enact laws of its own to preserve its security and to prevent any outside political bodies from conducting political activities or from intervening in the region’s independent security.[2] The national security law can be derived from 3 ordinances from Hong Kong’s penal law namely, The Official Secrets Ordinance, Crimes Ordinance, and Societies Ordinance. The Crimes Ordinance relates to managing the dissent arising within the region with regards to security. The Societies Ordinance is an essential ordinance that as it specifically deals with national security and after the amendment made in 1949, the words “foreign political organizations” were added in the ordinance. Its aim was to prevent the creation and promotion of the criminal secret societies which hamper the security of the region.
The citizens of Hong Kong have the freedom of speech vide the Bill of Rights, but there is a possibility that China finds out a way to override this in the law that they introduce. A legislation implemented by China would be considered national law, while the Hong Kong Bill of Rights is a local law, making it subordinate. The Standing Committee of the National People's Congress (NPCSC) is the highest authority on interpreting the Basic Law, and have the authority of ruling that the new security law cannot be restrained by the Bill of Rights.
Not only this, but Article 23 of the Basic Law also requires Hong Kong to pass local legislation by the Hong Kong Government and the Hong Kong Legislative Council (LegCo) in order to comply with the decision of the NPCPRC. But this will also implicate that China will be able to set up national security organs to operate and institutionalize in Hong Kong, all in a formal manner.[3]
In the year 2019, the government proposed a draft extradition bill that permitted the extradition to countries that do not have an extradition agreement with Hong Kong, including Taiwan and China. This bill initiated numerous protests amongst the people and gave rise to the Umbrella movement[4], due to which the bill had to be withdrawn. Noting this condition, China concluded that a national security law has become imperative in Hong Kong. On 18th June 2020, the government of China introduced the draft law to the NPC.
LEGISLATIVE HISTORY
As discussed earlier, there have been a few past attempts in the field of national security law. The following are the specific attempts made herein:
1. The Societies Ordinance: The residents of Hong Kong were particularly concerned about their civil liberties after the occurrence of the Tiananmen Square Massacre, which was the reason behind the amendment of the Societies Ordinance in 1992 for loosening the strict restrictions on registration of certain societies. However, during the handover in 1997, this rule could not be continued and hence was repealed. The amendment of 1997 raised questions about the use of the words ‘national security’ for prohibiting a society in the interest of public safety as it opposed Article 23 of the Basic Law. This evidently portrays that China wanted to impose a stringent national security law since the handover in 1997.
2. The Crimes Ordinance: The Hong Kong LegCo in 1996 introduced the Crimes (Amendment) Bill, 1996 in the light of the handover to be taken place in the following year. The aim of this amendment was to remove the mention of a monarchy. However, it also amended some provisions on treasonable offenses thereby impacting the Crimes Ordinance by amending the sedition legislation. This bill also restricted the freedom of speech of the citizens of Hong Kong. The bill was strongly criticized and was not passed.
3. National Security (Legislative Provisions) Bill, 2003: This bill was introduced in 2003 with an aim to implement Article 23 of the Basic Law so that the Hong Kong Government can enact a national security law of its own. This bill could not be passed due to the huge opposition gained by it. The major reasons for the protests were that the bill restricted the civil liberties of the people of Hong Kong and introduced sedition legislation. It also proposed to amend various other ordinances and was completely against the Johannesburg Principles. Moreover, subversion and secession offenses were introduced in this bill which criminalized the act of threatening the presence of PRC. This was the most problematic part of the bill in view of the protestors.
4. The 2010s: Politicians of Hong Kong who support Beijing have attempted to motivate the government to pass a national security law by saying that it is the only country where such a law does not exist.
LEGISLATION SUMMARY
It is pertinent to note that the National Security law has been added as Annex III to the Basic Law of Hong Kong for giving enforcement in the region. An exhaustive legislative summary is given hereinbelow. But, before that, it is important to understand the three most problematic areas covered by the law. Firstly, the criminal provisions have been worded in such a manner as to restrict the freedom of speech envisaged under the Basic Law. Secondly, it implicates the direct application of mainland Chinese laws in Hong Kong, thereby going against the mechanism adopted and promised under the previous declarations. Thirdly, the law has granted arbitrary powers to the police and reduced the aspect of judicial review.
It is noteworthy that numerous terms and provisions of this law resemble the mainland China’s Criminal Law with minor changes, such as ‘fixed-term imprisonment’ is used as ‘imprisonment’, ‘life imprisonment’ is substituted with ‘imprisonment for life’ and so on.
Interpretation Power: Article 65 of the law provides that the NPCSC has the sole power of interpretation which diminishes the powers of Hong Kong Courts in the interpretation of laws. This will render a weak criminal justice system and will ignite mistrust in the system. Giving such unprecedented power to the NPCSC will have two impacts:
o The rights of an accused in national security cases will be at stake. It is true that Article 4 of the law guarantees the application of the International Covenant of Civil and Political rights in each case, however, this will have no effect if the NPCSC chooses to interpret the case in the opposite direction.
o Due to the exclusive powers given to the NPCSC, they can introduce additional laws in Hong Kong via interpretations.
Now let us study the crimes and the penalties imposed by the national security law. Chapter III of the law sets out four types of crimes threatening national security:
1. Secession: Article 20 of the law deals with secession. It is described as an offense of organizing, planning, committing, or participating in the prescribed acts with the aim of undermining the national unification. The acts include separating any part of Hong Kong SAR from the People’s Republic of China, altering the legal status of Hong Kong SAR or any other part of PRC in an unlawful manner and surrendering Hong Kong SAR or any other part of PRC to a foreign nation. Neither force to a threat of force is an essential ingredient for committing this crime.
The penalty for the commission of this offense is life imprisonment or fixed-term imprisonment or short-term detention, which depends on the facts of each case and the gravity of the offense. Article 21 of the law also incriminates the abetment, assistance, or incitement by another person for the commission of the offense stated under Article 20 of the law.
2. Subversion: Article 22 deals with the offense of subversion of the State power. It states that if any person is found guilty of organizing, planning, committing or participating in the prescribed acts, with or without the involvement of the element of force, with an aim to subvert State power shall be punishable for the offense of subversion. The categories of the acts are:
Ø Undermining or overthrowing the system established by the Constitution of PRC.
Ø Overthrowing the central body of PRC or Hong Kong SAR.
Ø Severely interfering, undermining or disrupting the duties performed by the central body of PRC and Hong Kong SAR.
Ø Attacking the premises of the central body of Hong Kong SAR resulting in the incapability in the performance of duties by such body.
Similarly, the penalties of subversion of State power comprise life imprisonment, fixed-term imprisonment and short-term detention, depending upon the gravity of the offense. Article 23 of the law also incriminates the abetment, assistance or incitement by another person for the commission of the offence stated under Article 22 of the law.
3. Terrorist Activities: Article 24 of the law provides 5 terrorist activities for which a person can be incriminated. Any person who organizes, plans, commits or participates in the following terrorist activities for the purpose of coercing the Central Government, international organizations or the public to attain political benefits shall be liable:
Ø Serious violation against the person(s)
Ø Explosion, arson or dissemination of poisonous substances
Ø sabotage or serious interruption of infrastructures, public service facilities and transportations
Ø Serious interruptions of electronic control systems
Ø Other serious dangerous activities against public health and safety.
In addition, according to Article 25, if any person is found guilty of organizing or taking charge of a terrorist organization shall be liable for the prescribed punishment. The law also incriminates the act of abetting and aiding any terrorist activities as well as advocating terrorism. The penalty of this offence includes life imprisonment, fixed-term imprisonment and short-term detention, depending upon the role played in the commission of the offence and the level of involvement.
4. Collusion with Foreign or External Forces to endanger National Security: Article 29 and Article 30 deals with the offence of collusion, which includes receiving any kind of support from a foreign country or an external force/organization resulting in the endangering of national security. The following acts are covered in this crime:
Ø The Act of stealing, spying, obtaining upon payment or providing State secrets or intelligence concerning national security.
Ø Colluding with a foreign country or external organization for waging war against PRC, undermining the unification of PRC, Seriously disrupting the implementation of laws of the Hong Kong SAR resulting in serious consequences, undermining elections resulting in serious consequences, engaging in hostile activities and provoking hatred against the central government resulting in serious consequences.
Ø Colluding with a foreign entity with the motive of committing subversion or secession.
A person convicted of either of these crimes will serve 3 to 10 years in prisons; or 10 years to life, if the offense is “grave”. None of the crucial terms used in these articles have been defined under the law.
5. Other Crimes and Penalties: The law lays down several other offences and their penalties thereof. First, a corporate entity found guilty of any of the offences provided by this law shall be liable to be fined, suspended and it will further lead to revocation of their license.[5] Second, the law provides for the forfeiture of all proceeds to be used in the commission of the offences mentioned in the law.[6] Third, non-resident convicts will be deported from Hong Kong SAR.[7] Fourth, a convict under this law will become ineligible from contesting elections and lose his/her public office, if any[8].
Scope of Application of the law
Article 39 of the law provides that there shall be no retrospective effect of this law. Further, it provides 3 bases of jurisdiction:
1. Territorial jurisdiction: The National Security law is applicable to the crimes committed in the territorial boundaries of Hong Kong and also includes a Hong Kong-registered aircraft and vessel.
2. Nationality Jurisdiction: the law is applicable to all permanent residents of Hong Kong even outside the territory of Hong Kong.
3. Protective jurisdiction: The law is also applicable to any person who has committed the prescribed crimes not being the permanent resident of Hong Kong.
New Central Government Agency
The National Security Law has mandated the establishment of a Central Government Agency in Hong Kong, the Office for Safeguarding the National Security which is dealt with in Chapter V of the law. As per Article 55, the Office shall have the following jurisdiction:
Ø Where the cases are complex due to the involvement of the foreign or external elements.
Ø Where the Government is facing serious difficulty in the enforcement of the laws.
Ø An imminent threat to national security.
In addition, the Office itself can request the central government to allow it to exercise jurisdiction, even when, say, the Hong Kong government does not believe a case is “complex” or that it has any “difficulty” handling it. In the cases requiring the involvement of the Office for safeguarding the National Security, the Supreme People’s Procuratorate is empowered to designate a prosecuting body for prosecution and a court for its adjudication.
THE CONTROVERSY
The implications of the enforcement of the National Security Law will be severe. The people of Hong Kong will be subject to some of the provisions which mainland China has imposed on its citizens, which is completely against the scope of Article 23 of the Basic Law of Hong Kong. For example, the law incriminates the interference of any foreign national or external forces in the affairs of Hong Kong, naming it as a terrorist activity which is beyond the purview of what is mentioned under Article 23 of the Basic Law.[9]
Some of the provisions of the law are so stringent in nature, that they have the effect of prohibiting activities which were legal in Hong Kong. Some people fear that the attempt of lobbying the U.S. Congress by the Hong Kong citizens will be termed as illegal under the new law. This was done for the passing of the Hong Kong Human Rights and Democracy Act.
The establishment of a new Central Government Agency in the name of national security could have a critical impact. The provisions of the law can legalize mainland China’s security agencies to involve in the prosecution and adjudication of national security cases in Hong Kong. In the opaque system of Chinese criminal jurisprudence, around 99% of the criminal cases result in a conviction. If both, the national security agency and Hong Kong will have the power to hand over the serious cases to China, it will be a threat to the independent legal system as stated in the Joint Declaration as well as the Basic Law of Hong Kong.[10]
Another major concern of the people of Hong Kong is a provision in the law which provides that security cases that involve state secrets can have trials with no jury and behind closed doors. Although the verdict would be made public it is again, a threat to the autonomy of Hong Kong.[11] This law is nurturing an environment of secrecy and undermining the principles laid down in the basic law.
This law will have an impact on the freedom of speech of the people of Hong Kong, which has started to reflect in some areas. It was reported that some people have deleted Facebook posts which they infer to go against the arbitrary provisions of the law. In an interview conducted by Adrian Brown, it was observed that many people refrained from commenting on the issues concerning the national security law, which is quite unusual.
The judicial independence of Hong Kong Courts will be lost in time and will become similar to that of mainland China. Many people also worry about the diminishing of Hong Kong’s reputation in the international front as a global business hub since people around the world will consider twice before coming or investing in Hong Kong. Hence, the law will also have a negative impact of the economic growth and development of Hong Kong.
CONCLUSION
It is undeniable that the National Security Law will severely affect the rights of the people of Hong Kong. On the other hand, 53 countries have declared a joint statement accepting and appreciating the steps taken by China for the implementation of the National Security Law in Hong Kong. This Joint Statement was issued in the 44th session of the United Nations Human Rights Council and was read by Cuba’s representative in the Council, stating that this step of non-interference in the internal affairs of Hong Kong is one of the basic principles of the Charter for United Nations and is a healthy step towards promotion of good international relations. The Joint Statement providing that national security issues are the concern of the State and there is no clear human rights violation upon the implementation go the national security law of Hong Kong. The statement on behalf of the 53 countries said the new legislation will provide a better guarantee for "one country, two systems", benefit Hong Kong's long-term prosperity and stability and ensure the exercising of the legal rights and freedom by Hong Kong people in a safer environment.
There are countries that have expressed deep concerns regarding the imposition of this law which shall effectuate the depletion of freedom and autonomy of Hong Kong. One of the major countries condemning this move is the United States. More than 1300 American businesses operate in Hong Kong and around 80% of them will be affected due to the impact on civil liberties in the region. The U.S.-Hong Kong Policy Act of 1992 is also at stake as the privileges mentioned under the Act could reap $66 billion of business.[12] The U.S. has initiated the drafting of the actions against this law, starting from imposing visa restrictions on Chinese Officials.[13] The European Parliament has passed a resolution for taking China to the International Court of Justice upon the implementation of this national security law. Even Japan has expressed its concern about the undermining of the trust for the principle of ‘One Country, Two Systems’ due to this law. The United Kingdom has not commented upon this issue as Boris Johnson, the Prime Minister of the UK stated that they are going to scrutinize the law thoroughly. This move is opposed by a total of 27 countries including Australia, France, Germany, Netherlands, United Kingdom, which was declared by a Joint statement.[14] The International ramifications of the step taken by China are still a mix of opinions.
Footnotes: [1] The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, 2020. Available at https://www.gld.gov.hk/egazette/pdf/20202448e/egn2020244872.pdf [2] Article 23, The Basic Law of Hong Kong Special Adiminstrative Region. [3] “Hong Kong Security Law: 5 Fcats you need to know”, The Hindu, 1 July 2020. [4] Ma, Ngok and Edmund W. Cheng. The Umbrella Movement. Amsterdam University Press, 2019. Project MUSE [5] Article 31, Law on Safeguarding National Security in the Hong Kong Special Administrative Region, 2020. [6] Article 32, Law on Safeguarding National Security in the Hong Kong Special Administrative Region, 2020. [7] Article 33, Law on Safeguarding National Security in the Hong Kong Special Administrative Region, 2020. [8] Article 35, Law on Safeguarding National Security in the Hong Kong Special Administrative Region, 2020. [9] Drishtiias, “New Security Law in Hong Kong”, June 2020. [10] “Hong Kong Security Law: What is it and is it worrying?”, BBC News, 30 June 2020. [11] Michael F Martin and Susan Lawrence, “China Moves to Impose National Security Law” Congressional Research Service, June 2020. [12] MacKenzie Sigalos, “How China’s National Security law could change Hong Kong forever”, CNBC, July 1, 2020. [13] AlJazeera, “World reacts to China’s national Security Law for Hong Kong”, 1 July 2020. [14] Cross-Regional Joint Declaration on behalf of 27 Countries, 30 June 2020. Available at https://www.gov.uk/government/speeches/un-human-rights-council-44-cross-regional-statement-on-hong-kong-and-xinjiang
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