07 July 2020
While China maintains that the law is essential for securing Hong Kong’s economic and political stability, there are serious concerns that it undermines the territory’s autonomy.
By Avantika Deb
The imposition of a controversial national security law by China on its special administrative region Hong Kong has sparked renewed concerns regarding China’s policies undermining the territory’s autonomy. On 30 June, China’s National People’s Congress Standing Committee unanimously passed the law and it was enacted, likely in a symbolic move, on 1 July, which also marked the anniversary of Hong Kong’s handover to China from Britain. The controversial law, which was conceived in secrecy and swiftly passed without much input from Hong Kong authorities in the background of the ongoing COVID-19 pandemic, criminalises secession, subversion of the central government, terrorism or collusion with foreign forces; related offences can result in harsh penalties including life imprisonment. The full text was revealed by Beijing only after it was passed. While mainland authorities maintain that the law is essential for securing Hong Kong’s economic and political stability, legal experts and civil society leaders claim that it undermines the autonomy guaranteed in Hong Kong’s mini-constitution, known as the Basic Law, which was outlined in the 1985 Sino-British Joint Declaration during the handover of the territory in 1997.
Shortly after the law was approved, at least two opposition parties announced that they were disbanding, with prominent pro-democracy activists such as Joshua Wong, Nathan Law and Agnes Chow from the Demosisto group stepping down from their positions. Hong Kong residents have been deleting their social media accounts in large numbers in order to remove any post that may be considered subversive or secessionist. The sale and usage of virtual private network software, which is often used to dodge digital surveillance, have increased significantly in Hong Kong. Reports claim that all of this is due to the law’s perceived ambiguity and extensive scope. Like similar laws existing on the Chinese mainland, the security law is somewhat open-ended. Law professor Jacques deLisle from the University of Pennsylvania points out that the crimes mentioned in the law are all vaguely defined and hence the law can be interpreted or applied very broadly.
The law seems to be effectively targeting months-long anti-government protests over a proposed extradition bill in 2019 where protesters vandalised pro-Beijing businesses, attacked government and police buildings and paralysed public transport. Under the new law, damaging government buildings and disrupting transport can be considered subversive or terrorist activities in “grave” cases and may be punishable by life imprisonment. Overall, the security law gives Beijing a great level of authority to intervene in Hong Kong’s legal affairs without any scrutiny from local courts and lawmakers. It allows Beijing to set up a “National Security Committee” to oversee investigations of violations, which is not subject to judicial review or Hong Kong law, which means that it can operate without any checks and balances. Apart from this, in “complex” cases, China can take over complete legal jurisdiction and can extradite suspects to the mainland to face trial. This is essentially the same provision as the now-shelved anti-extradition bill which triggered the widespread protests in 2019. In such cases, the accused will be subject to Chinese criminal law. China can also waive trial by jury and deny public access to the trial if the case is believed to contain sensitive information. Another controversial aspect of the security law is that it can apply to anyone, even outside Hong Kong. According to Article 38, the law can apply to offences committed “outside the region by a person who is not a permanent resident of the region”. This can target journalists, foreign media outlets, non-governmental organizations and other international groups for advocating anything perceived as “inciting hatred” against Beijing. Concerns have been raised among legal experts that such long-arm jurisdiction and overreach can be severely detrimental to Hong Kong’s status as an international financial centre.
China’s sudden and drastic move has drawn condemnation from countries such as Japan, the United Kingdom and the United States. Japan referred to the law as “regrettable” and the US has already started taking steps to end Hong Kong’s special status trade relationship. The Trump administration has also talked about imposing a series of sanctions on China, including visa restrictions and limits on exporting defence technology. UK Prime Minister Boris Johnson has announced that up to three million Hong Kong residents will be offered a chance to settle in the UK and eventually apply for citizenship, offering them a way out of Hong Kong as the UK believes that the law violates the 1985 Sino-British agreement. Despite all of this, Beijing is unlikely to revert on its decision as it has a record of not yielding to international pressure. Protests in Hong Kong are also likely to continue in the foreseeable future, but perhaps on a reduced scale due to the implications of the security law. In light of the new law, more restrictions on groups and individuals working on human rights and democracy issues in Hong Kong are likely to emerge in the coming months, as China seems to be undertaking an iron fist approach in its response to Hong Kongers’ demands for democratic practices in the territory.
Avantika Deb is an India-based political and security risk analyst covering East Asia and Oceania.