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Protest or dangerous subversion: what China’s proposed national security laws mean for Hong Kong

Protest or dangerous subversion: what China’s proposed national security laws mean for Hong Kong

National security laws set to be made for Hong Kong have been called a "death knell" and "badly damaging". Why are they so controversial?

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Beijing’s announcement that it intends to draft national security laws on Hong Kong has riled Hong Kong's protesters, been condemned by several nations and raised several questions about the rights of the territory's citizens.

The laws have not yet been written, but the prospect of pushback against curtailed freedoms has prompted the city's police force to lock down several of the city's streets, as authorities brace for a wave of protests after a break from unrest during the harbour city's pandemic lockdown.

So what are these new laws? Why are they so controversial? And what do they mean for the one country, two systems arrangement that governs Hong Kong?

A pro-democracy supporter is detained by police during an anti-government rally on May 24 in Hong Kong.

A pro-democracy supporter is detained by police during an anti-government rally on May 24 in Hong Kong.CREDIT:GETTY IMAGES

What are the new laws?

A decision from the ruling Communist Party in Beijing has authorised Chinese legislators to draft a national security law for Hong Kong.

National security risks in the former British colony had become a "prominent problem", Wang Chen, vice-chairman of the Standing Committee of the National People's Congress, said in a report from Xinhua news agency on May 22. "Law-based and forceful measures must be taken to prevent, stop and punish such activities." The proposed law will cover four main matters: subversion, secession, terrorism and foreign interference.

Subversion, in a dictionary, is the undermining of the power of an authority. Secession is when you seek to break away from a political state. Terrorism means using violence or intimidation, especially against civilians, to achieve a political aim. And foreign interference, basically defined, is when foreign powers attempt to influence what is going on in another country, often by sneaky means.

Most countries have laws on these matters, although definitions of these crimes vary considerably. The Chinese government's definition is a key concern right now.

It is also possible, but not a given, that these laws may give China's Ministry of Public Security, which is China's main police and security agency, the right to set up offices in Hong Kong.

Update: China goes ahead, US and UK react

China's National People's Congress has approved the decision to make the new national security laws for Hong Kong. China's Ministry of Public Security said it would use "all efforts to guide and support the Hong Kong police to stop violence and restore order".

UK Foreign Secretary Dominic Raab said his government would open a path to citizenship for 300,000 Hong Kong residents with British National (Overseas) passports if Beijing did not back down. These passport holders have the right to come to the UK for six months, a limit that would be replaced with extendible periods of 12 months.

US President Donald Trump said the administration would begin eliminating the "full range" of agreements that had given Hong Kong a relationship with the US that mainland China lacked, including exemptions from controls on certain exports.

Hong Kong's government said Trump's move was "unjustified" and China was within its "legitimate rights" to pursue the new national security laws.

Some pro-democracy supporters welcomed the move, details of which have not been made public, but others fear Hong Kong has become collateral damage in a rivalry between two superpowers. "This looks like a new Cold War, and Hong Kong is being made a new Berlin," said Claudia Mo, a lawmaker in the city's pro-democracy camp. "We are caught right in the middle of it."

– Bloomberg, New York Times

Hang on, doesn’t Hong Kong make its own laws?

Well, yes, it’s a fundamental part of the “one country, two systems” arrangement between Hong Kong and mainland China. Hong Kong has its own legislature, in a smartly designed building down by its central harbour. It has been a focus for angry protests in recent times, with one pro-democracy lawmaker in May calling a pro-Beijing counterpart "a vicious Beijing little worm".

“So, 99.9 per cent of the laws in Hong Kong consist of laws made by the Hong Kong legislature,” says Albert Chen, Professor in Constitutional Law at the University of Hong Kong, “but then, under Article 18 of the Basic Law, the Chinese legislature … can also make a law and apply it to Hong Kong”.

The Basic Law, Hong Kong’s mini-constitution, says mainland China can make laws for it on defence and foreign affairs as well as “other matters outside the limits of the autonomy of [Hong Kong]”.

So far, this handful of laws includes the stationing of a Chinese garrison in Hong Kong (by law, these troops must not interfere in local affairs), the criteria for being considered a Chinese national and the national flag law, which prohibits flag desecration.

The newly proposed national security laws would seem to fall under the third, rather nebulous, category of being outside the limits of Hong Kong’s autonomy.

“I cannot say it's a total surprise,” says Hong Kong Basic Law expert Danny Gitting. “I didn’t expect this but it’s not inconsistent with the way that the Basic Law and Hong Kong’s power has been interpreted over the past few years.” He says one turning point was a Chinese government white paper in 2014 that said China had “comprehensive jurisdiction” over Hong Kong. “We’d never heard that before,” he says. “In some senses, although we didn’t expect it, this is a logical progression of that.”

Once the proposal to make the new law is approved, in principle, by the nearly 3000-member National People’s Congress (NPC) in Beijing, the new law will be written in the coming weeks or months by a standing committee of around 200 members and then shared with a smaller committee that offers advice.

Professor Chen is a member of this advice committee. “The committee only has to be consulted shortly before the law is put into Annexe III [which enables the law to apply to Hong Kong],” he says. “As far as I know, the law has not yet been drafted.

“The NPC decision says, when this national security law on Hong Kong is made, it will be directly promulgated. So it doesn't need to be implemented by the Hong Kong legislature.”

Police check pedestrians gathered in the Central district of Hong Kong on May 27.

Police check pedestrians gathered in the Central district of Hong Kong on May 27. CREDIT:GETTY IMAGES

Why the controversy?

The new laws represent the most significant development in Hong Kong since one country, two systems came into play in 1997, says Ryan Manuel, managing director of research firm Official China. China is “using the law to get an outcome that's not in the spirit of the Basic Law,” he says. “The most worrying consequences would be that legislative bodies within Hong Kong will not be considered sovereign and able to draft laws.”

The United States is reportedly mulling moves against China as Secretary of State Mike Pompeo called the proposed new laws a "death knell" for the high degree of autonomy that Beijing promised to Hong Kong in the lead-up to '97. Australia, Canada and the United Kingdom have jointly criticised the law too, saying it would "clearly undermine" Hong Kong's autonomy and its citizens' civil liberties.

Hong Kong's Bar Association has concluded that China's NPC Standing Committee does not have the power to add the national security law under Annex III of the Basic Law via Article 18 and has called the draft laws "worrying and problematic".

The issue is not just that Beijing is running the show but that the contents of the law may not be compatible with freedom of speech and the right to protest, which are enshrined in Article 27 of the Basic Law.

This is almost a Tiananmen Square situation,” says Michael Shoebridge, an expert on national security with the Australian Strategic Policy Institute. “The rights and freedoms of a whole lot of citizens of Hong Kong are being very badly damaged. And a number of people in Hong Kong could end up in rather nasty Chinese jails for long periods of time for doing things that the Basic Law of Hong Kong currently guarantees they can do until 2047.”

The term "rioting" has proved a major sticking point after several hundred protesters were charged with the offence, which carries a 10-year jail term.

“Both subversion and terrorism have been very broadly characterised within mainland China,” says Shoebridge. “Subversion is anything that undermines the power or authority of the central government – and being critical of the central government is enough to meet that woolly definition. The public protests on the streets of Hong Kong have been already characterised by Chinese officials as terrorism last year – and the Uighurs, for example, are characterised as terrorists even though most of the millions of them in camps have committed no crime.”

Professor Chen says we don’t know what “foreign interference” will mean in the new law but there is speculation it will relate to funding local activists. He says it is too early to condemn the contents of a bill that hasn’t been written but if it does take a very broad definition of subversion, “then people would be worried”.

Hong Kong’s Chief Executive Carrie Lam says "rights and freedoms are not absolute".

"If a minority of people – indeed, a very small minority of people – are going to breach the law to organise and participate in terrorist activities to subvert the state power then, of course, they have to be bounded by the needed legislation."

The handover ceremony at the Hong Kong Convention Centre on July 1, 1997.

The handover ceremony at the Hong Kong Convention Centre on July 1, 1997. CREDIT:AP

Who makes the laws and why is the process so complicated?

Hong Kong’s complicated relationship with China has a long history. China ceded Hong Kong to Britain in 1842 after a humiliating defeat in the first Opium War but, by the final decades of the last century, colonialism was on the way out. In 1984, Britain and China agreed to find an answer to “the question of Hong Kong”. They declared that China would resume sovereignty over Hong Kong in 1997, from which time Hong Kong would be vested with executive, legislative and independent judicial power, “including that of final adjudication”, for 50 years.

“The current social and economic systems in Hong Kong will remain unchanged, and so will the lifestyle,” the declaration reads. “Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel … will be ensured by law in [Hong Kong].”

After the handover in 1997, a chief executive headed Hong Kong instead of a British governor and Hong Kong became a “special administrative region of China” with a one country, two systems arrangement enshrined in the Basic Law. But the system, with its promotion of liberal democratic values, has put Hong Kong on a collision course with Beijing – and this accelerated last year with protests over a proposed extradition law.

Protesters form a front line during a stand-off with police in December 2019.

Protesters form a front line during a stand-off with police in December 2019. CREDIT:GETTY

Why is this law being introduced now?

There are two factors, says Professor Chen. One is that Hong Kong has not passed its own national security laws, although it is required to under Article 23 of its Basic Law. Hong Kong leaders shelved plans for new laws in 2003 after people took the streets in protest. “Whenever anybody talks about Article 23 then there will be a lot of fear and anxiety,” says Chen. “So the government was reluctant to do anything to implement Article 23.”

The other is the past year of protests. “The Chinese government was content not to press this matter for a long time,” says Chen, “… until this anti-extradition movement and riots last year. So the Chinese government considers that now there are these threats to national security in Hong Kong, and Hong Kong doesn’t have any law to deal with the matter.

“I believe that if there were no proposed extradition law and there were no riots, no such acts of violence – or some people would say it’s close to terrorism – if there were no such things happening last year, I don’t think that this national security law would be put on the agenda.”

ASPI’s Shoebridge sees things differently.

“There wouldn’t be protests if Beijing wasn’t trying to undercut the freedom and legal system in Hong Kong," he says. "That’s what the extradition treaty was about. And now this [law] is tripling down – not doubling down – on that behaviour that has created the protests that Beijing says are the problem.”

He believes there is a third factor behind the timing. “This is an indicator of the anxiety that the Chinese government has around social stability and support. Hong Kong is a radioactive demonstration that Chinese people can have freedom of speech, assembly, protest and be equal before the law – and be very successful.

“I think the big shift is that Xi Jinping has now said, ‘No, those freedoms are dangers, as examples for a mainland population, and I will not offer them to Hong Kong and I do not want them maintained in Hong Kong’.”

Hong Kong chief executive Carrie Lam meets with Chinese President Xi Jinping in December 2019.

Hong Kong chief executive Carrie Lam meets with Chinese President Xi Jinping in December 2019.CREDIT:AP

What will happen next?

There is no mechanism to stop these laws being introduced, says Manuel. He says the new laws will require Hong Kong's judiciary to interpret them on a case-by-case basis.

Hong Kong’s courts have a good track record on protecting human rights, says Gitting, “and it’s not going to be easy for them to suddenly sweep all that away. China could word what it is doing [in a way that] will make it easier for the courts to avoid difficult decisions than just saying: What China has said prevails.”

As the laws were set to be approved by the National People's Congress on May 27, media reports surfaced that the wording might be expanded to cover both “activities” as well as “acts” which, Gitting says, could indicate the Chinese government was seeking to catch organisations as well as individuals. “The point I’d draw from that is that this is being written in something of a rush, by people who are not necessarily terribly well-versed with the details of Hong Kong’s legal system and it would not be a surprise … if when we see the wording there are various problems with it and that will only increase the difficulty for the courts.”

The "big dividing line" to watch out for, says Gitting, will be any wording that criminalises peaceful actions. “We think it probably will, at least for Hong Kong independence.”

A “small but significant” number of Hongkongers want independence from China, he says (as opposed to a continuation of semi-autonomy or self-determination). “Again, there are numerous court cases that are very, very reluctant to uphold any significant restrictions on rights where you are talking about the peaceful exercise of those rights.”

Shoebridge says other countries' reactions to the new laws are still in flux. Countries could band together to offer “pathways for refugee status or citizenship” for Hongkongers fleeing because of these laws, he says, and they could consider enacting Magnitsky-style laws that let them sanction individual lawmakers and officials who enact and give effect to the new laws in Hong Kong. (The United States already has such laws, which were expanded from being Russia-focused to global in 2016; a parliamentary inquiry in Australia has been considering them since December.)

Meanwhile, as police surrounded the Legislative Council building on May 27, the lawmakers inside held a hearing into yet another new law – one that would criminalise disrespect towards China's national anthem, March of the Volunteers. (Hong Kong soccer fans have been known to boo the song when it is played at matches.) Before the day was out, police had arrested more than 350 people, most on suspicion of unauthorised assembly.

“Certainly, some people are worried”, says Gitting. “By all accounts, there are increasing applications about immigration overseas. But we cannot say that people in Hong Kong are paralysed with fear. While it has become more difficult to hold lawful street protests than in the past, we cannot say that, in other respects, everyday life in Hong Kong has been fundamentally affected as yet.”

– with wires

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