Hong Kong’s New Security Law

The year 2020 has seen several drastic changes in the field of politics. One such transition was the introduction of China’s new security law with regards to Hong Kong.

This move caused humongous uproar amongst the masses, politicians, and activists. This law has been pegged by several scholars to be something that will drastically reduce the autonomy enjoyed by Hong Kong and its people.

However, to further comprehend the legislation, we need to examine Hong Kong’s history.

Hong Kong, officially the Hong Kong Special Administrative Region of the People’s Republic of China (HKSAR), is a special administrative region of People’s Republic of China (PRC).

This former British colony was turned over to China as a special administration region in the year 1997. This was a result of the expiration of Britain’s 99-year lease of the New Territories.

Hong Kong has been governed on the basis of ‘one country, two systems’ with China agreeing to give great autonomy to Hong Kong authorities and preserve economic and social systems.

However, it is important to mention that Beijing can vote for changes in the political system. This has been a source of a major scuffle between the pro-democracy forces and Beijing.

Source: BBC

The principle that governs China-Hong Kong relation is enshrined in a document known as the Basic Law or Hong Kong’s “mini-constitution.” 

The Basic Law states that no Chinese regulation can be applied to the region unless it is mentioned in Annex-III of the document.

These regulations can be introduced by a decree which means it may bypass the region’s parliament. The Basic Law came into effect on 1st July 1997, with the ending of the British rule.

The agreement protects freedom of speech and assembly neither of which are available in the mainland. This legislation also provides for a semi-representative system of government and an independent judiciary.

However, the agreement is valid only for 50 years meaning that 2047 is the year this agreement expires. Nevertheless, it should also be mentioned that Beijing controls Hong Kong’s politics to a great extent. Under the Basic Law, the courts of Hong Kong are supposed to act within the bounds of its “autonomy.”

This line is in itself pretty vague as the limits are not mentioned clearly and the National People’s Congress Standing Committee (NPCSC) holds the power regarding the final interpretation of law and actions of Government.

BBC mentions that since the handover of the region, this act by the NPCSC has been visible 5 times.

Critics have pointed out that such a move by the NPCSC has been about fundamentally altering the law rather than a simple interpretation.

The most recent example is that of 2016 when two pro-independence lawmakers wanted to modify their allegiance oaths.

The New Security Law:

Various critics of the legislation have called this “the end of Hong Kong.” If we go through the regions’ political development, we will see that it was supposed to have a security law since the beginning, but was unable to pass one due to its unpopularity amongst the crowd.

It has been speculated by many that such a move by China is to provide the region with a legal framework and contain challenges to the authority. BBC mentions that 66 articles of the act were kept a secret till it had been passed and the act criminalizes any action that may be about:

  • Secession from the Country
  • Subversion
  • Terrorism against the mass
  • Collusion with foreign powers

Moreover, the legislation awards Beijing the power to shape life in the region. Critics have pointed out the fact that this law harms the rights of the people greatly.

However, China has been quick to point out that the sole purpose of this act is to stabilize the region. The Hindu mentions 5 key things that one must know about the law:

  • Maximum life sentence or long term imprisonment of 10 years
  • Chinese jurisdiction over ‘very serious’ crimes, complicated foreign interference, and cases where national security faces serious and realistic threats. “Both the national security agency and Hong Kong can request to pass the case to mainland China,” the law stated.
  • Some national security cases can also be held within closed doors and no juries. City leader Carrie Lam will personally see to the proceedings of the case.
  • New national security agency.
  • Oversight of Foreign NGOs and news organizations.

It has been pointed out by several activists and concerned media outlets that the vague terms used in the articles of the act may give rise to human rights infringement all over the region.

“Its criminal provisions are worded in such a broad manner as to encompass a swath of what has so far been considered protected speech,” said a posting regarding the observations made by law experts.

Article 29 is one such example that talks about collusion with foreign authority or powers to invoke “hatred” regarding the Chinese government will be seen as a criminal offence. However, the worrying question was if that included criticism of the government.

On asking this to Hong Kong’s Justice Secretary Teresa Cheng, no clear answer was provided. Another observation was made regarding the words “highly subjectable and malleable.”

The vague language used in Article 55 with regards to cases about national security has been a worrisome issue for Human Rights organisations as the law might undermine protections previously offered to defendants.

Trials being held in secret (Article 41) and without the presence of a jury (Article 46) has also sparked tension amongst people. Moreover, judges who are handpicked (Article 44) are answerable to Beijing.

The law also seems to reverse a presumption regarding bail (Article 42) and the same law seems to suggest that how long a suspect may be held has no limit. It should also be mentioned that Article 3 and 4 of the committee also reiterates the necessity of Hong Kong to enact its own security law.

Hong Kong’s Chief Executive Carrie Lam made it clear that “legislation on national security is undoubtedly within the purview” of Beijing.

According to Lam, the legislation will not amend the Basic Law governing Hong Kong nor will it repeal the article that mentions how Hong Kong has “constitutional responsibilities and legal obligations to enact laws on its own to stop acts that endanger national security.”

The new legislation will solely target acts of secession, subversion, organizing terrorist activities, and interference by foreign or external forces.

The aim of this legislation is to “safeguard national security and the prosperity and stability of Hong Kong, thereby better protecting the legitimate rights and freedoms of all members of the public in Hong Kong,” claimed Lam.

International reaction:

The legislation has caused angst, fear, anger all over the world. The law is seen as a tool to punish the dissidents, a fear that stems from China’s judicial track record.

It has been pointed out time and again that such a move is a clear violation of the Basic Law agreed by China previously. However, the decision not only authorised the Standing Committee to draft the law but made clear that this act was to be enacted and inserted into Hong Kong’s basic law by promulgation. From the International arena, The United States (US) Secretary of State, Mike Pompeo, claimed that now it could revoke the special status it awards to Hong Kong thereby removing the favourable trading terms.

This move could harm Hong Kong’s economy to a great extent. United Kingdom’s (UK) response regarding the decision was a tad bit muted initially, but with time the government offered 300,000 Hong Kongers sanctuary.

By claiming this to be a “blatant interference” in China’s domestic matters, Ambassador Liu tweeted that the UK had “contravened international law and the basic norms governing international relations.”  The European Council President, Charles Michel explained that he takes a dim view of the decision

. “This law risks seriously undermining the high degree of autonomy of Hong Kong and having a detrimental effect on the independence of the judiciary and the rule of law,” said the European Council President.

“Australia is troubled by the law’s implications for Hong Kong’s judicial independence, and on the rights and freedoms enjoyed by the people of Hong Kong, both of which underpin the city’s success,” claimed a minister of foreign affairs, Maris Payne. Moreover, a joint statement was issued by 27 countries voicing concern over the Hong Kong issue in the UN Human Rights Council.

It mentioned how enacting a law in Hong Kong without the participation of Hong Kong’s people undermines the ‘One country, two systems’ principle.

Conclusion:

Beijing has been asking Hong Kong to implement a security law since 1997 which has been mentioned as well in their (legal) agreement, but the authorities failed to do so. Beijing, however, took matters into its own hand and introduced legislation in 2020.

Legal experts and scholars have stated that this move would fundamentally change Hong Kong and diminish autonomy enjoyed by Hong Kong. An attempt to implement a security law by Hong Kong authorities in the year of 2003 was met by approximately 500,000 people taking the streets.

Another set of protests followed. On 2019 protests took place regarding another bill that mentioned extradition of suspects to the mainland.

The underlying fear was that Beijing was probably trying to do away with the city’s independent judicial system. For more than six months, pro-democracy protests engulfed Hong Kong which was often violent and challenged the authorities. As a result, Beijing to control the worsening situation passed legislation.

By :- Sagarika Mukhopadhyay