Hong Kong National Security Law

Explaining the Chinese move

Ghufran Wakeel 

On May 28, China’s National People’s Congress (NPC) approved a decision to move forward with national security legislation for Hong Kong. The vote approves the standing committee to draft legislation to punish secession, subversion of state power, terrorism and acts that endanger national security in Hong Kong. Beijing has asserted the law change will be tightly focused and non-threatening. Its plan includes outposts of mainland agencies to curb interference by foreign countries. The move has prompted widespread condemnation, especially from around the Western world. European Union representatives and the foreign ministries of the UK, Australia and Canada have argued that Hong Kong’s high degree of autonomy would diminish, violating the Sino-British Joint Declaration, Hong Kong residents’ rights and freedoms would be harmed, and that bypassing the local legislature cannot be justified. However, Chinese authorities and the Beijing-backed government in Hong Kong say there is no threat to the city’s autonomy and the new security law will be tightly focused.

The National People’s Congress of China recently approved a decision to enact national security legislation for Hong Kong, a move critics say will fundamentally undermine the freedoms that were enshrined in the territory’s laws when it was returned to Chinese rule in 1997. Chinese assert that the piece of legislation will safeguard Hong Kong and China from separatist, subversive and terrorist activities, and foreign intervention. The law would make criminal acts out of any of the following:

1. Secession–breaking away from the country;
2. Subversion–undermining the power or authority of the central government;
3. Terrorism–using violence or intimidation against people; and
4. Activities by foreign forces that interfere in Hong Kong.

Let’s have a look at what these criminal acts are, and examine what is the actual norm is elsewhere:

1. Secession

This is the encouraging of or deliberate moves to break up a country. Most secession events occur as a result of civil war, and rarely via democratic procedures. China has had an anti-secession law since 2005; therefore it is not entirely unexpected it wishes Hong Kong to come into line with its own legislature.

The United States takes an ambiguous position on secession, although there have been rulings (Alaska, 2006) that would suggest it would be considered illegal if any serious movement came into being.

 

Spain, with the Basque separatist movement, effectively considers secession illegal and an imprisonable offense. In many real cases it becomes effectively a moot point, as such movements tend to lead to civil unrest, and violence such as the 30-year war that took place in Sri Lanka before being resolved – and then only after hundreds of thousands of civilian deaths.

The secession issue is a headache for Beijing. Having it not applicable to Hong Kong could mean that the territory becomes a hub for anti-China sentiment not just in Hong Kong, but elsewhere in China. When examined, it is not unreasonable per se for Beijing to be concerned about this and to look at bringing Hong Kong into line with the rest of the national laws on the issue.

2. Subversion

Subversion is trickier to pin down as the laws can be applied with very wide-ranging interpretations. Beijing will need to be careful with how it describes this. It is hard to define “Undermining the Government” without being accused of draconian measures.

In Hong Kong, the new law calls for penalties for “abusing the (Chinese) national anthem”. My own stance is that this is unnecessary, however, it should be noted that this is also in place in other countries such as Canada, India, Japan, Malaysia, Russia, Singapore, Philippines, and several African and South American nations. Any national anthem is a symbol of respect, and deliberately showing the exact opposite is disrespectful to the citizens of that same nation, regardless of who it is. It is also worth remembering that President Trump was incensed when various American sports stars recently knelt on one knee rather that stand for the US national anthem. Although minor as a transgression, those who choose to abuse a national song ought to be aware it can be considered highly insulting to others. Abuse of a song is pretty childish. There are better ways to make one’s points of view known. If you wish to protest, just mouth the words and claim a sore throat.

Another oft-quoted issue is the burning of a national flag. It is illegal in China, however again the United States is somewhat conflicted in its own approach to such an act, although President Trump has shown approval to a new motion to criminalize this under the “Flag Desecration Amendment”. Other countries, such as the United Kingdom, are taking similar paths, while it is already an offense in many countries, including most of Europe, India, Japan, Mexico, and New Zealand.

While flag burning is just one example, the emotive issue concerning subversion is defining the exact term. For that we will need to see the draft law, which hasn’t been agreed yet. It is the definition of subversion, or any lack of description of the term, that will prove the most awkward for Beijing to present as binding upon Hong Kong citizens.

3. Terrorism

All countries have anti-terrorism laws and it is not unreasonable for Beijing to include Hong Kong into its national legislation and protection against this. The issue for Beijing will be defining that element so it cannot be broadly used against citizens creating mischief (such as ripping up paving stones). The definition of weapons may be a key point here in determining a protesting Hong Kong citizen engaged in stone-throwing from a terrorist armed with semi-automatic weapons or explosives.

One should be reminded about the position of the United States Police Force in this, where armed officers have recently been filmed shooting and in some cases killing unarmed or low-risk individuals and used the ‘combating terrorism’ gambit as an excuse for use of firearms.

4. Activities by Foreign Forces

A disturbing element of the problems in Hong Kong is that there is hard evidence some ‘pro-democracy’ protesters have been paid HKD 300 each to demonstrate. That might not be much for the average citizen, but it’s enough to sway some teenagers. International media doesn’t wish to follow the activities looking to undermine China, but having lived in Hong Kong and China for 25 years I have seen enough to note they have always been present. They alone are not the reason for Hong Kong’s unrest, but they do seek to make it worse. Again, how wide-ranging measures are to clamp down on foreign subversion remains to be seen. A sensationalist, anti-China media presence does not help matters. More should be done between the Chinese Government and Foreign Press Associations to try and forge workable ties and understandings of their respective roles and the Chinese regulatory position.

China’s Stance

The draft represents a significant legislative step regarding Hong Kong Special Administrative Region (HKSAR) security issues. It aims to resolve HK’s legal deficiencies and prevent internal and external forces from using the region as a tool or creating situations that threaten national security.

Article 23 of the Basic Law allows the HKSAR government to improve its legal system when safeguarding national security. However, 20 years after Hong Kong’s return to the Chinese mainland, enforcing local legislation has been problematic. The draft addresses HK’s legal obstacles while aiming to strengthen legislative vulnerabilities. The measure also echoes the basic principles of the rule of law.

The national security legislation for HKSAR is fundamentally necessary for the “one country, two systems” principle. Hong Kong opposition forces and Western media have said the draft decision would destroy it. On the contrary, the draft law is a move aimed at preventing external forces from meddling in HK affairs. It would also deter the power HK extremists. The decision would reestablish a stable environment where the “one country, two systems” principle could work smoothly. 

Extreme opposition forces try to steer HK off course and direct it to external influences like the US. Opposition entities in HK and the US try to create a value system against China’s central government and the “one country, two systems” policy. They try to redefine the policy, and what HK democracy and freedom mean to them. In recent months, they have distorted Hong Kong public opinion. The concept of right and wrong has become so warped that last year’s law-defying violence has since been labeled as “justice.”

Hong Kong security is an integral part of China’s national security. The security loopholes must be plugged to prevent external forces from meddling in its affairs and using the city to attack China. Furthermore, Hong Kong affairs would cease to be a diplomatic issue between China and the US. For Hong Kong, the next steps are peace and revitalization, which will be necessary for it to reclaim its standing as an international financial hub.

By adding greater national security protection, Hong Kong’s status as a special administrative region will be consolidated. Moreover, it would make it easier to maintain its unique political system and prevent it from being hijacked by international situations. The extra layer of protection would also make it increasingly difficult for some “ambitious” HK politicians to poison the city’s atmosphere. HK capitalism would begin to reveal the common traits it shares with developed societies rather than underdeveloped ones. Therein lies the main interest of all Hong Kong people.

International Response

As expected, the US government has reacted strongly. President Donald J. Trump said Hong Kong can no longer be deemed sufficiently autonomous from China to warrant the special treatment it has enjoyed under US law. Trump said the United States will take steps to revoke Hong Kong’s special trade status and sanction Chinese and Hong Kong officials. But how much of its special status will be lost and over what period remains to be seen.

More surprising has been the vigorous response by the previously timid United Kingdom. It not only joined Australia, Canada, and the United States in a strong joint statement of protest but also announced that it is preparing to extend visa opportunities to hundreds of thousands of Hong Kong holders of British National Overseas passports. UK officials have indicated that if Beijing fails to relent, such passport holders may be allowed to live and work in the United Kingdom and eventually obtain UK citizenship.

The European Union has expressed “grave concern” over Beijing’s action, and Japan has also voiced opposition. The forthcoming Group of Seven (G7) meeting could mobilize further pressures against Beijing. Reactions from the United States and others will surely not sway Beijing from its current course but they could make the new legislation less ambitious in articulation, if not in implementation.

What is in the legislation?

China’s legislative body, the National People’s Congress, approved the introduction of new legislation that will be drafted over the next two months and is expected to take effect in September. The laws would effectively prevent, stop, and punish any acts occurring within Hong Kong that are aimed at splitting China, subverting state power, organizing and carrying out terrorist activities, or otherwise seriously endangering national security. Such acts include activities by foreign or external forces that interfere in Hong Kong’s affairs.

The legislation will eventually be inserted into Annex III of Hong Kong’s Basic Law and promptly promulgated and implemented by the Hong Kong government, bypassing Hong Kong’s Legislative Council.

To make certain these new laws will actually safeguard national security, the decision also authorizes national security organs to set up institutions in Hong Kong “as necessary.” The Ministry of State Security, the Ministry of Public Security, and secret police organizations that rule mainland China but have been formally precluded from Hong Kong until now can begin to operate openly in Hong Kong.