The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (the ‘HK Security Law’) came into effect at 23:00 Hong Kong time on 30 June, an hour before the 23rd anniversary of the its return to China after 156 years of British rule. It applies to both permanent and non-permanent HK residents. By Dr Zhu Xiaojiu MBE
The entire legislative process of the HK Security Law occurred in just over a month. There was no significant input from Hong Kong authorities and no consultation with Hong Kong residents. Article 62 states that “This Law shall prevail where provisions of the local laws of the Hong Kong Special Administrative Region are inconsistent with this Law.”
It is no surprise that this new law has been widely criticised by academics and politicians from HK and the West. We need to consider “Does Hong Kong need this Security Law?”
Since the return of Hong Kong 23 years ago, why has the Hong Kong special administrative region (SAR) not passed a law on national security as required by the Basic Law?
Hong Kong Basic Law Article 23 states that Hong Kong “shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion ….” However, this requirement had not been fulfilled until 30 June 2020.
The first Chief Executive of the Hong Kong SAR Mr. Tung Chee-hwa was the first to formally propose legislation for Article 23 of the Basic Law in 2003. The proposed law stipulated that Hong Kong should legislate itself to “prohibit any acts of treason, split the country, incite rebellion, subvert the Central People’s Government and steal state secrets” with corresponding penalties.
This proposal triggered a large-scale demonstration with a reported 500,000 peaceful campaigners. The proposed law was subsequently withdrawn.
Every Chief Executive after Tung Chee-hwa, including Tsang Yinquan, Liang Zhenying and Lin Zhengyue, has pointed out that Article 23 of the Basic Law is the constitutional responsibility of Hong Kong. However, there have been no further proposals due to the risk of further public dissent and mass demonstrations.
In contrast, Macao SAR successfully passed the National Security Law in 2009 in accordance with the Macao Basic Law, just ten years after it was handed over to China from Portugual.
Why would China Promulgate the Hong Kong Security Law at this Time?
International investors are attracted to Hong Kong due to its open international financial markets, Western ideology and location next to the world’s second biggest economy. Shanghai and Shenzhen are currently unable to replace Hong Kong’s status as an international free trade port thereby Hong Kong remains the “Pearl of the East”.
The introduction of the Fugitive Offenders amendment bill in 2019 led to concerns of abuse of civil liberties. Protests began peacefully with a sit-in at the government headquarters on 15 March 2019, a demonstration on 9 June and a gathering outside the Legislative Council Complex to stop the bill’s second reading on 12 June. However tensions subsequently escalated into ugly street violence, leading to significant disruptions to universities, businesses and city life. The scale of the violence and the consequential economic recession is unprecedented and unlikely to be tolerated by the government of any western country. Something needed to be done to resolve the chaos and violence.
Shaking the foundation of ‘one country two system’ and encroaching human rights?
Some Western countries including the United States and Britain, have accused Hong Kong of formulating the National Security Law due to possible concerns that Hong Kong’s original Basic Law guaranteeing human rights and freedom of expression comes at the cost of potentially endangering national security.
Article 1 states this law is to ‘Establish and Improve the Legal System and Enforcement Mechanisms for Safeguarding National Security in the Hong Kong SAR for the purpose of ensuring the resolute, full and faithful implementation of the policy of One Country, Two Systems under which the people of Hong Kong administers Hong Kong with a high degree of autonomy’.
The government body responsible for implementing the National Security Law is stated in Article 12 as the Committee for Safeguarding National Security of Hong Kong SAR which should be established by Hong Kong. Article 13 named the members and the structure of the Committee: Chief Executive of Hong Kong (Chairperson), Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Commissioner of Police etc. The committee is comprised of experienced Hong Kong SAR government officials who are currently in office; no new or external appointments were made.
Whether or not the Hong Kong Security Law will shake the foundation of ‘one country two system’ and potentially threaten human rights depends largely on the administration of the new law and the interpretation and application of the 66 articles in the new law.
The Hong Kong Bar Association is concerned that the offenses created by the law are “widely drawn’ and lacking “basic safeguards as to legal certainty and fair treatment, and are capable of being applied in a manner that is arbitrary, and that disproportionately interferes with fundamental rights, including the freedom of conscience, expression and assemble.”
They are concerned that the law could be potentially misinterpreted, which could result in misjustice. It has been reported that 10 people were arrested and accused of violating the new law, including a man with a pro-independence flag. The world will be watching the outcomes of these first 10 cases to see if their concerns materialize.
The making of the Hong Kong Security Law itself does not shake the foundation of ‘one country two systems’ and does not encroach human rights. The application of the case law in arrests will give us the final answer.
Should Hong Kong have a Security Law?
Most countries have national security laws to protect national interests. India formed a national security council in 1980. Indonesia’s constitutional law 1945 allowed the government to enact the Anti-Terrorism Law No.15 in 2003 following the Bali bombing in Oct 2002. Japan published their national security strategy in 2013. Malaysia enacted the Internal Security Act in 1960 after the Federation of Malaysia gained independence from Britain in 1957 and published its national security policy in 2019.
Internationally, national security is respected by the European Convention on Human Rights and the UN Universal Declaration of Humans Rights. States have the right to legislate the necessary tools in the fight against terrorism to protect their citizens. Most Western countries reserve the right of the State to intercept electronic communications as an essential tool for anti-terrorism and to arrest and question suspects for periods of time which can be extended.
Zheng Ruohua, the Secretary for Justice of Hong Kong, said: “National security is never a matter of the autonomy of the Hong Kong region.” Although the new Hong Kong Security Law has faced heavy criticism, the common view in Hong Kong is that this is an internal issue between China and Hong Kong. On this topic of national security, sovereignty and territorial integrity, this house rule is not a matter for another family or state to interfere with.
How will the stability and prosperity of Hong Kong help develop Sino-British relations?
Both London and Hong Kong are global economic powerhouses. In addition, Hong Kong was the world’s third most popular arbitration venue before last year’s street violence.
Due to Hong Kong’s unique location, and its inherited judicial system from the British, Hong Kong is very popular with international business people. The stability of the city is essential if Hong Kong is to continue to play a leading role in the development of global partnerships in trade and commerce.
Protecting the British-influenced civil liberties that Hong Kong citizens enjoy whilst maintaining stability and peace requires perceptive insight and intelligent strategy. The prosperity of Hong Kong is essential for the growth of mutual Sino-British relations.
It is said that to promote democracy and protect human rights there must be a rule of law. Lord Bingham described the core principle behind the concept as ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.’
On the basis of one country two systems, the Hong Kong Security Law is the Chinese rule of law for national security.
Dr Zhu Xiaojiu, Chairman of the UK Society of Chinese Lawyers