Beijing enacted the “Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” on June 30, ahead of the 23rd anniversary of the city’s handover on July 1. This law effectively abrogated the “one country, two systems” model enshrined in the 1984 Sino-British Joint Declaration and the 1990 Basic law, the city’s mini-constitution, and rescinded longstanding civil and political rights. On the first day of its implementation, 10 out of 370 people arrested during the July 1 protests have been charged with violations of the new national security law.
Beijing’s System Has Taken Over the Hong Kong System
Hong Kong’s return to China in 1997 was premised on the “one country, two systems” model, which creates a firewall to protect Hong Kong’s open society from the mainland’s one-party dictatorship — to be achieved by “Hong Kong people ruling Hong Kong” under a “high degree of autonomy.” Mainland departments are expressly barred from interfering in Hong Kong affairs. Mainland laws, with limited exception, are not to apply in the city. Central to this constitutional structure is a commitment to the “ultimate aim” of “universal suffrage,” as well as the rule of law and the fundamental rights and freedoms spelled out in international human rights covenants.
The national security law has abandoned these commitments and effectively revised the Basic Law. It seeks to “prevent, stop, and punish” any “act or activity” related to “secession,” “subversion,” “terrorist activities,” and “collusion with foreign and overseas forces.”
The Basic Law stipulates that Hong Kong shall enact a national security law “on its own.” However, the new law was passed by the National People’s Congress Standing Committee (NPCSC) in a month’s time, in secrecy without consultation. A Chinese text (without an authentic English text) was promulgated at 11 p.m. on June 30 and went into immediate effect.
The law sets up a local Hong Kong Committee for Safeguarding National Security chaired by the chief executive and composed of cabinet-level officials along with top law enforcement personnel. It operates under Beijing’s direct supervision through a mainland-appointed national security advisor. Its deliberations are held in secret and not subject to judicial review. Its budget is also not bound by current legal restrictions.
Moreover, a Central Government Office for Safeguarding National Security, whose officials are assigned from mainland security bureaus, is set up in the city to guide, oversee, and supervise local officials in national security matters. Its officials, while ostensibly required to obey local laws, are beyond local jurisdiction in exercising their duties. They further have the prerogative to refer “complex” and “serious” cases to mainland jurisdiction.
Where cases are handled locally, the law limits local judges’ independence. The chief executive is empowered to select a limited panel of judges from among current and retired judges to try national security cases. Selected judges are removed if they “make any statement or behave in any manner endangering national security.” Judges cannot exercise judicial review as the power of interpretation is vested solely with the NPCSC. The accused are denied bail by default “unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.” They may also be denied a jury by the prosecution. They are subject to sentences from three years to life imprisonment.
For elected offices in the Legislative and District Councils, this law repeats the Basic Law requirement of a loyalty oath. Analysts fear that support for the national security law will be added to allow the authorities to disqualify opposition candidates in subsequent elections.
Criminalization of Dissent
Although the national security law promises to protect “the freedoms of speech, of the press, of publication, of association, of assembly, of procession, and of demonstration” in accordance with international conventions, its many vague and overarching provisions prevail over preexisting local laws in case of discrepancies.
The authorities claim that this law is targeted at only a tiny minority of violent protesters. However, “subversion” covers not just “acts by force or the threat of force” but also “other unlawful means,” which could include unauthorized peaceful protest. “Terrorism” refers to violence against property and disruption of transport as well as injuries to human lives. “Collusion” involves disrupting government policies, undermining elections, calling for sanctions, and provoking hatred. Moreover, the law encompasses not just concrete “acts,” but also loosely defined “activities” of “incitement,” “assistance,” “abetment,” and “provision” of financial and other forms of support.
The criminalization of nonviolent means of protest began on day one under the new law. For the first time since the handover, the police banned an annual demonstration planned for the July 1 anniversary, thus rendering any gathering an “unlawful assembly.” The riot police turned out in force and held up this warning: “If you are displaying flags or banners/chanting slogans or conducting yourself with an intent, such as secession or subversion, which may constitute offences under the HKSAR national security law, you may be arrested and prosecuted.” The police arrested 370 protesters and charged 10 of them under the new law for holding or possessing materials that said not only “Hong Kong independence,” and “Liberate Hong Kong, revolution of our times,” but also “conscience” and “justice.” Zhang Xiaoming of Beijing’s Hong Kong and Macau Affairs Office stated that spreading “false claims” about police killing on August 31 last year would constitute incitement of “hatred” toward the authorities. Pro-democracy businesses are being warned by the police to take down “Lennon walls” of sticky notes with political messages.
This law further encourages confessions and reporting on offenses committed by others to root out dissent.
The Law’s Global Reach
There is much speculation that a mass arrest will happen when the world’s attention is diverted elsewhere. Here comes the crime of “collusion” and Beijing’s assertion of “extraterritorial jurisdiction” to cut off global support for Hong Kong. The national security law applies to individuals and corporations, residents and nonresidents alike, inside or outside China, who have committed the above acts or activities. Foreign nationals who are also permanent residents of Hong Kong are subject to the same punishment as local residents. Those who have no residency status in Hong Kong are “subject to deportation as the sole or an additional punishment.” Since June last year, overseas Hong Kongers have raised funds for the protests and mobilized for governmental and parliamentary support around the world. The U.S. Congress has held multiple hearings and passed the 2019 Hong Kong Human Rights and Democracy Act and the 2020 Hong Kong Autonomy Act.
Nevertheless, the potential charge of “collusion,” which carries life imprisonment and worse, did not deter Cheuk-yan Lee from testifying at the House Foreign Affairs Committee on July 1. Hong Kongers abroad seem equally determined to push for stronger U.S. policies against Beijing even if this means that they can no longer go home.
Michael C. Davis is a Senior Research Scholar at the Weatherhead East Asia Institute at Columbia University, a Global Fellow at the Wilson Center and Professor of Law and International Affairs at O.P. Jindal Global University. He was formerly a professor in the University of Hong Kong Faculty of Law. He has written numerous commentaries in local and international media including the most recent piece “Hong Kong is part of the mainland now.”
Victoria Tin-bor Hui is Associate Professor in Political Science at the University of Notre Dame. A Hong Kong native, she has recently written on “Today’s Macau, Tomorrow’s Hong Kong?” What Future for “One Country, Two Systems?” “Beijing’s Hard and Soft Repression in Hong Kong” and “Beijing’s All-Out Crackdown on the Anti-Extradition Protests.”