Hong Kong: National Security Law and recent events

National Security Law passed

On 30 June 2020, the People’s Republic of China’s parliament passed a new National Security Law for Hong Kong, bypassing the territory’s own Legislative Council.

China has been alarmed by the mass protests in 2014 and 2019 in Hong Kong that brought hundreds of thousands of pro-democracy supporters out on the streets, and the success of pro-democracy politicians in the island’s 2019 local elections.

Hong Kong History and the Joint Declaration

Hong Kong was a British colony from 1842 until the UK transferred sovereignty over Hong Kong to the People’s Republic of China (PRC) in 1997, after which it became a Special Administrative Region of China. In preparation of the handover, the UK and China agreed the Joint Declaration on the Question of Hong Kong (Joint Declaration) in 1984.

The Joint Declaration enshrined the concept of “one country, two systems” under which Hong Kong would enjoy a “high degree of autonomy”, maintaining, for example its own legal system, judiciary and borders. This system is preserved in the Basic Law, Hong Kong’s constitutional document, that come into force after the 1997 handover of power.

The Joint Declaration does not contain any penalties for China if it breaches the agreement or any sort of dispute resolution process.

China’s powers to legislate for Hong Kong

Article 18 of Hong Kong’s Basic Law says Chinese laws can’t be applied in Hong Kong unless they are listed in a section called Annex III.

This provision states that the Hong Kong Government shall be consulted on any laws proposed by China, and that such laws shall be confined to those relating to three areas: (a) defence; (b) foreign affairs and (c) other matters outside the limits of the autonomy of Hong Kong as specified under the Basic Law.

Article 23 of the Basic Law also obliges the Hong Kong Government to pass national security legislation to prohibit acts such as treason, secession, sedition, subversion against the Central People’s Government, and to prohibit the influence of foreign political organizations. However, no HKSAR Government so far has been able to pass such legislation due to internal opposition.

China argues that the Chinese central Government is responsible for upholding national security and making laws on national security. Hong Kong’s inability to pass its own legislation has left it “defenceless” and the “grave” national security situation meant it had to step in.

Some legal scholars argue that the phrase in Article 23 that Hong Kong “shall enact laws on its own” on national security, prohibits China from passing its own laws in this area.

The law’s main provisions

The National Security Law The legislation criminalises any act of:

• secession;
• subversion;
• terrorism; and
• collusion with foreign or external forces.

The law established a new Beijing-led security office in Hong Kong, with its own law enforcement personnel – neither of which would come under the local authority’s jurisdiction. Hong Kong’s political leader, Chief Executive Carrie Lam, now has the power to appoint judges to hear national security cases. Beijing will also have power over how the law should be interpreted, rather than any Hong Kong judicial or policy body. If the law conflicts with any Hong Kong law, the Beijing law takes priority.

The National Security Law also states it applies to anyone regardless of where they live in the world or if they are a citizen and/or resident of Hong Kong.

UK response

The UK Government have said that the National Security Law is a “clear and serious violation” of the Joint Declaration.

The UK has suspended its extradition treaty with Hong Kong, tightened its embargo on the sale of arms and crowd control equipment, and has opened a new visa route to people from Hong Kong who have British National (Overseas) – ‘BN(O)’ – status and their close family members.

Both the Labour Party and prominent politicians such as former Governor of Hong Kong, Chris Patten have called for “Magnitsky-style sanctions” to be placed on Chinese and Hong Kong officials responsible for “for the crackdown on the pro-democracy movement in Hong Kong”.

China’s response to criticism

In May 2020, China’s Embassy in the UK put out a statement on Hong Kong’s national security legislation saying it is “purely China’s internal affair, which no foreign country has the right to interfere in”.

It described the 2019 protests as “increasingly rampant activities by the “Hong Kong independence” elements, and radical and separatist force”, and that there was “escalating violence and terrorist activities”.

The statement also said the “One Country, Two Systems” and the “high degree of autonomy” envisaged under the system had been “implemented faithfully” since Hong Kong’s handover.

Events since the law was passed: activists arrested and media crackdown

Since the law was passed in June 2020 there have been mass arrests of leading activists who were involved in the 2014 and 2019 protest movements.

The National Security Law does not directly address the media or the press. However, the vague way it is written has reportedly led to many journalists self-censoring their output, and has not stopped the Hong Kong authorities from targeting the press. For example, pro-democracy newspaper the Apple Daily, shut itself down in June 2021 after being twice raided by the police and its owner and senior editors arrested.

In February 2021, a new national security education curriculum was introduced in Hong Kong’s schools, and in August the same year the largest teacher’s union was shut down after being accused by Chinese media of supporting the pro-democracy movement.

Electoral system changed

In March 2021 China’s legislative body passed significant changes to Hong Kong’s electoral rules which will tighten its control over the city.

The number of directly elected seats in Hong Kong’s Legislative Council will be cut almost by half, and prospective Council Members will first be vetted by a “candidate qualification review committee” to ensure that only “patriotic” figures can run for positions of power.

Colonial era sedition laws used once again and plans for a new local Hong Kong National Security Law

Laws on sedition originating from Hong Kong’s colonial past that have not been used in decades and are said by some to contravene the pledges in Hong Kong’s Basic Law to uphold political rights, are now being used again to prosecute authors and political activists.

It has been reported that Hong Kong’s Government now plans to pass its own National Security Law, to allow it prosecute offences listed in Article 23 of the Basic Law that are not already covered by the Chinese-imposed legislation.