What to Make of the “Safeguarding National Security” Legislation

By: Adara Manamperi

On June 30, 2020, the Chinese Standing Committee of the National People’s Congress (NPC) enacted and put into place the “Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region.” [1] This law, according to the NPC,[2] was put into place in response to “social unrest and escalating street violence” that has created national security risks since Hong Kong has been “returned to the motherland” in 1997.[3] The legislation contains many provisions that effectively limits, and in some instances, criminalizes, the freedom of speech and protest in Hong Kong.[4] However, in 1997, when Britain returned Hong Kong to China, it was under a “mini-constitution called the Basic Law and a so-called ‘one country, two systems’ principle.”[5] These two conditions were supposed to protect “freedom of assembly and speech, an independent judiciary and some democratic rights” for Hong Kong.[6]

The question then remains of how has China imposed this law upon Hong Kong which seems to violate exactly what the Basic Law and “one country, two systems” principle were set to protect? The law was forced through by the NPC, bypassing the Hong Kong legislature and keeping the text of the law hidden from the public until it was enacted as law.[7] China contends that since Hong Kong did not enact its own national security law, which it was supposed to under the Basic Law, that they are stepping in to fix the “‘weak links’ in Hong Kong's existing legal system and enforcement mechanisms in safeguarding national security”.[8] Critics, however, argue that this is a blatant disregard and breach of the 1997 handover agreement,[9] and that because the law is so broad and vague, that there could be serious consequences for virtually anyone if they violate the provisions.[10]

There are many issues with the legislation, that have been brought forward by citizens, international organizations, and even governments from other nations. First off, as mentioned above, the legislation itself is very vague and broad. From Article 1 of the legislation, it states a purpose of “preventing, suppressing and imposing punishment for the offences of secession, subversion, organisation and perpetration of terrorist activities, and collusion with a foreign country or with external elements to endanger national security in relation to the Hong Kong Special Administrative Region.” [11] The acts of secession, subversion, terrorist activities, and collusion with a foreign country/external elements all carry potential life imprisonments according to Chapter 3 of the legislation,[12] and because these terms are so broadly defined within the legislation, it leaves open the possibility for politically motivated prosecutions with unreasonable and unjust punishment under the law to anybody who purportedly engages in these acts.

Another issue lies within the abuse of the law since its passage. Within the text of the legislation, Article 4 states:

The rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.[13]

However, it seems that many of the arrests following the passage of the bill seem to be policing just what Article 4 was supposed to protect.[14] In addition to the arrests made at the national level, the question remains about the reach of the bill into the international education realm and how it pertains to Chinese students’ ability to maintain free speech even outside of Hong Kong because of the threat of extradition if found guilty. More recently, Oxford University has asked students who are specializing in the study of China to submit papers anonymously in order to offer some sort of protection to the “powerful extraterritorial powers claimed in the law.” [15] This is similar to policies being taken on at US colleges, where students are being asked to use codes instead of names to submit work,[16] or can be excused from discussing politically sensitive topics if they are worried about the risks of doing so.[17]

Even people who are not Chinese citizens may be found guilty under the law, as according to Article 38: “offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.” [18] The reach of the law seems to move to virtually anybody on the planet in any nation, and because many nations have extradition treaties with Hong Kong, could possibly have grave consequences; however, since the passing of the bill, some nations have already severed those treaties. [19] International groups such as the UN are calling on China to review the legislation, citing that the law risks “breaching multiple international laws and the declaration of human rights” [20] and that the law “infringes on fundamental rights and may not meet international thresholds of necessity, proportionality, and non-discrimination”.[21] Separate from this, other nations are taking actions in response to this sweeping national security legislation. The United States has imposed economic sanctions in response[22] and has also provided that “no American[s] can enter transactions that involve targeted officials from the city and mainland China.”[23] The United Kingdom is offering up to three million Hong Kong residents the chance to settle in the UK and eventually apply for citizenship, [24] while Australia suspended its extradition treaties with Hong Kong and is offering a new path to citizenship for those wishing to leave Hong Kong.[25]

While these efforts made by the international community may help some residents of Hong Kong, many who are still living there are seeing the chilling effects of the law, and watching as their so called freedoms are being slowly washed down the drain. Hon Man Po, a man who fled from China to Hong Kong in 1968 as a part of the “Freedom Swimmers,[26]” says that the law has reversed what Hong Kong has meant to him and that“[t]he precious thing about Hong Kong was its liberal environment where all kinds of opinions could be aired, [b]ut now, many people are afraid to speak out. Living under fear is painful and humiliating.” [27] From schools in Hong Kong being forced to remove books that may violate the law (such as pro-democracy or subversive content), [28] to excessive policing of the law in areas of free speech and expression, [29] it is clear that the security law is policing pro-democracy movements, something that has been a staple in Hong Kong ever since its return to China in 1997.

In conclusion, while the security law is quite new and has already been met with pushback, both nationally and internationally, it remains to be seen what could come out of it. At this time, many residents of Hong Kong are simply demonstrating caution, a caution they did not have to fear for before the law, whether it is deleting old posts, anonymizing anything they may do, or simply ceasing to speak freely anymore.[30] However, the question still remains of how this national law will truly affect Hong Kong’s Basic Law and the “one country, two systems” principle, and what this law means for the future of Hong Kong’s sovereignty and freedoms as a whole. At this point, only time will tell and the decisions from the judiciary may set precedents as to how this law truly applies, hopefully narrowing the very broad, open, and interpretive language that is used in the law that is causing fear and panic to Hong Kong residents. 

#NatiionalSecurityLaw #LiberateHongKong #SafeguardingNationalSecurity #Manamperi #International #Law #Blog #Post

Image Statement: Protesters gather in front of the Chinese Embassy in Seoul on May 27, 2020, to oppose China's move to enact a national security law that is feared will curtail Hong Kong's autonomy and civil liberties. (Photo by Kyodo News via Getty Images).

[1] Emily Feng, China Enacts Security Law, Asserting Control Over Hong Kong, NPR, June 30, 2020, https://www.npr.org/2020/06/30/885127007/china-enacts-security-law-asserting-control-over-hong-kong.

[2] China Adopts Decision to Make Hong Kong National Security Laws, The National People’s Congress of the People’s Republic of China, May 29, 2020, http://www.npc.gov.cn/englishnpc/c23934/202005/9da80e07428743928073a4cf016d4eed.shtml.

[3] Id.

[4] Hong Kong Security Law: What is it and is it worrying?, BBC, June 30, 2020, https://www.bbc.com/news/world-asia-china-52765838.

[5] Id.

[6] Id.

[7] Hong Kong’s National Security Law: 10 Things You Need to Know, Amnesty International, July 17, 2020, https://www.amnesty.org/en/latest/news/2020/07/hong-kong-national-security-law-10-things-you-need-to-know/.

[8] See China Adopts Decision to Make Hong Kong National Security Laws, supra note 2.

[9] See Hong Kong Security Law: What is it and is it worrying?, supra note 4.

[10] See Hong Kong’s National Security Law: 10 Things You Need to Know, supra note 7.

[11] The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (English Translation), Art. 1, Xinhua Net, July 1, 2020, http://www.xinhuanet.com/english/2020-07/01/c_139178753.htm [hereinafter Safeguarding National Safety Legislation].

[12] Id. at Chapter III.

[13] Id. at Art. 4.

[14] See Hong Kong Police Force (@hkpoliceforce), Twitter (July 1, 2020, 1:38 AM), https://twitter.com/hkpoliceforce/status/1278201222457987073, Hong Kong Police strictly Enforce National Security Law, Hong Kong Police Force, June 30, 2020, https://www.police.gov.hk/ppp_en/03_police_message/pr/pr_archives.html?month=202006, Democracy activists' books unavailable in Hong Kong libraries after new law, Reuters, July 5, 2020, https://uk.reuters.com/article/uk-hongkong-protests-books/democracy-activists-books-unavailable-in-hong-kong-libraries-after-new-law-idUKKBN24606Y, Tom Grundy, Security Law: Hong Kong Police Arrest 8 at ‘Blank Placard’ Silent Protest, Hong Kong Free Press, July 6, 2020, https://hongkongfp.com/2020/07/06/security-law-hong-kong-police-arrest-8-at-blank-placard-silent-protest/, Government Statement by the Government of the Hong Kong Special Administrative Region, July 2, 2020, https://www.info.gov.hk/gia/general/202007/02/P2020070200869.htm.

[15] Patrick Wintour, Oxford Moves to Protech Students from China’s Hong Kong Security Law, The Guardian, Sept. 28, 2020, https://www.theguardian.com/education/2020/sep/28/oxford-moves-to-protect-students-from-chinas-hong-kong-security-law.

[16] Rozina Sabur, Chinese politics students at Princeton 'will be given code names to protect identity from Beijing', The Telegraph, Aug. 19, 2020, https://www.telegraph.co.uk/news/2020/08/19/chinese-politics-students-princeton-will-given-code-names-protect/.

[17] Sarah Al-Arshani, American Universities, Including Harvard and Princeton, Weigh Options to Protect Students from Political Prosecution under China’s New National Security Law, Business Insider, Aug. 20, 2020, https://www.businessinsider.com/american-universities-work-shield-students-chinas-new-national-security-law-2020-8.

[18] See Safeguarding National Security Legislation, supra note 11 at Art. 38 [emphasis added in italics].

[19] Naomi Xu Elegant, If you’re reading this, Beijing says its new Hong Kong security law applies to you, Fortune, July 7, 2020, https://fortune.com/2020/07/07/hong-kong-law-scope-extraterritorial-jurisdiction/.

[20] Helen Davidson, Hong Kong Security Laws ‘May Break International Laws’, The Guardian, Sept. 4, 2020, https://www.theguardian.com/world/2020/sep/04/hong-kong-security-law-may-break-international-laws-china-human-rights-un.

[21] United Nations Special Rapporteur, Comments on The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“National Security Law”), OL CHN 17/2020, Sept. 1, 2020, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25487.

[22]  “The U.S. Senate unanimously approved legislation on Thursday to penalize banks doing business with Chinese officials who implement Beijing’s draconian new national security law on Hong Kong.” Patricia Zengerle, Bill Targeting Banks Over China's Hong Kong Law Passes U.S. Senate, Reuters, July 2, 2020, https://www.reuters.com/article/us-hongkong-protests-usa-sanctions/bill-targeting-banks-over-chinas-hong-kong-law-passes-u-s-senate-idUSKBN2432NA.

[23] Tony Cheung, National Security Law: Americans Banned from Entering into Transactions with Hong Kong Leader Carrie Lam and Others Targeted by Sanctions, South China Morning Post, Sept. 27, 2020, https://www.scmp.com/news/hong-kong/politics/article/3103199/national-security-law-americans-banned-entering.

[24] Hong Kong: UK Makes Citizenship Offer to Residents, BBC News, July 1, 2020, https://www.bbc.com/news/uk-politics-53246899.

[25] Angus Watson & James Griffiths, Australia Suspends Extradition with Hong Kong and Offers Path to Citizenship for City’s Residents, CNN, July 9, 2020, https://www.cnn.com/2020/07/09/asia/australia-hong-kong-extradition-intl-hnk/index.html.

[26] See Ian Stewart Special, Chinese Refugees Swim Across a Perilous Bay to Hong Kong, The N.Y. TIMES, June 22, 1972, https://www.nytimes.com/1972/06/22/archives/chinese-refugees-swim-across-a-perilous-bay-to-hong-kong.html.

[27] Verna Yu, ‘Back Where We Were’: History Repeats for Hong Kong's Freedom Swimmers, The Guardian, Sept. 27, 2020, https://www.theguardian.com/world/2020/sep/28/back-where-we-were-history-repeats-for-hong-kongs-freedom-swimmers.

[28] Zhao Yusha, Hong Kong Education Bureau to Remove Books with Subversive Content, Global Times, July 6, 2020, https://www.globaltimes.cn/content/1193699.shtml.

[29] Jennifer Creery, Hong Kong Security Law: 370 Arrests, Tear Gas, Pepper Balls and Water Cannon as Protesters Ignore Police Ban, Hong Kong Free Press, July 1, 2020, https://hongkongfp.com/2020/07/01/hong-kong-security-law-180-arrests-tear-gas-pepper-balls-and-water-cannon-as-protesters-ignore-police-ban/. 

[30] Jen Kirby, China’s New National Security Law and What It Means for Hong Kong’s Future, Explained, Vox, July 14, 2020, https://www.vox.com/2020/7/2/21309902/china-national-security-law-hong-kong-protests-us-sanctions.