Beijing’s New National Security Law: What it means for Hong Kong?
Professor Rajaram Panda

A resurgent China seeking a pie in every corner in the world has chosen to pursue a ruthless policy of expanding its global footprint by cajoling, coercion, policy of economic domination (read BRI), infringing on another country’s territorial sovereignty, intimidation and many more such means. Whether it is Beijing’s policies on the contested region of South China Sea violating the UNCLOS, territorial disputes with India, threat to annex Taiwan by use of force should it declare independence, trade war with the United States, expanding its control over Hong Kong, issuing threat to Japan over the Senkaku Islands, expanding its naval presence in the Indian Ocean region – China gnawing of its teeth is visible all over. This article focuses on China’s latest attempt to end Hong Kong’s autonomy by issuing the draconian New National Security Law that subverts Hong Kong’s cherished rule of law.1

In passing the bill, the Hong Kong Special Administrative Region (HKSAR) legislature was not involved. The bill was passed in haste in less than 30 days after it was first introduced at the full session of China’s National People’s Congress (NPC) in late May.2 The forced implementation of this controversial law that came into effect on 30 June 2020 has triggered an intractable tug of war between China and Hong Kong.3 China’s decision to impose the law goes against the territory’s own mini-constitution. According to Simon Chesterman, dean of the law faculty at the National University of Singapore, the manner in which the law was passed with minimal consent of Legislative Council representatives in Hong Kong was not only a departure from past practice, it was “reminiscent of colonial laws adopted to maintain order in unruly territories”.4

Tensions started building up when China’s National People’s Congress (NPC) authorised its standing committee to draft a national security law. 5 Such a measure directly challenged Article 18 of Hong Kong’s Basic Law6, the territory’s de facto mini-constitution that came into effect after British handover in 1997, as it limited Beijing from applying national laws to the territory, except in matters of defence and foreign affairs. This new legislation fuelled fears in Hong Kong that it would erode the high degree of autonomy the former British colony has enjoyed under a “One country, Two systems” formula since its return to Chinese rule.

This controversial new law now gives Beijing unprecedented judicial powers in the financial hub with jurisdiction over cases, secret trials without jury and a national security agency. Four categories of criminal offences were outlined. These were secession, subversion of state power, terrorist activities and collusion with foreign elements. Beijing retained the right to interpret the nature of the crimes and the City Leader Carrie Lam given unlimited freedom to interpret the law that would please Beijing.7 The law not only erodes Hong Kong’s independence but also challenges the territory’s legal system guaranteed by its mini-constitution.

Hereafter, politics and fate of Hong Kong shall not be the same again. The new national security law demonstrates Beijing’s fundamental distrust of a territory as it had resisted in the past any such attempt by Beijing to enact such laws since 1997. The cumulative distrust of the past decades that e culminated into mass protest movement led Beijing finally to use the whip to silence the protestors. 8 Hereafter, the defenders of the law that boasted of the robust legal system and independent courts shall no longer enjoy the same privilege.
The signs were ominous way back in 2003 when Beijing imposed censorship on booksellers trading on literature critical of the Chinese Communist Party. Many of them were either kidnapped or detained on trivial grounds in a measure to control free voices. It is illegal for mainland agents to operate in the semi-autonomous city, but the disappearance of five Hong Kong booksellers known for publishing salacious titles about Beijing’s leadership in 2015 prompted widespread criticism that China had overstepped that line. 9 When one of them, Lee Bo, vanished from Hong Kong, it triggered international condemnation and local protests that the city’s autonomy and rule of law was under fire. Then in 2017, Hong Kong’s autonomy got a jolt when Beijing authorities kidnapped Xiao Jianhua, a Chinese-Canadian financier, at the Four Seasons Hotel and took him to China for trial. The mystery over the Chinese billionaire disappearance heightened fears over Beijing’s meddling.10 It was suspected that Xiao’s disappearance was part of China’s ongoing anti-corruption campaign, which some critics believed was used to target President Xi Jinping’s political opponents.
Indeed, Hong Kong has a tumultuous journey to cope with Beijing’s hegemony. As a part of the 1997 handover from Britain, China agreed to guarantee Hong Kong certain freedoms including judicial and legislative autonomy, for 50 years in a deal known as “One country, Two systems”. Though Beijing still claims that it respects those conditions, the conditions enumerated in the new national security law rubbish such claims. Indeed, Beijing never seemed to have reconciled with the 1997 handover terms and had pursued systematically and incrementally to annul all the democratic rights and norms that Hong Kongers enjoyed and impose the same yardstick that it applies on the people in China on Hong Kongers. The series of attempts that preceded the promulgation of the national security laws are: the first security law attempt (2003), education reforms (2012), no universal suffrage or rise of Umbrella Movement (2014), disappearance of booksellers (2015), disqualification of lawmakers (2016/17), extradition bill (2019) and finally the new national security law (2020).11 Ho
ng Kong bookseller disappearances

The key points in the new law shall have far-reaching consequences on life in the city’s 7.5 million people. The question that arises is: why did China want it? China took note of Article 23 of Hong Kong’s Basic Law12 which says that the city must enact national security legislation to prohibit “treason, secession, sedition (and) subversion” against the Chinese government. Beijing was provoked by the demonstrations in Hong Kong in 2019 and encouraged by Beijing's top official in Hong Kong, Liaison Office director Luo Huining’s recommendation to Beijing for the need of a new national security law galvanised Beijing to combat violent protestors and independence advocates.13

Earlier, though Article 23 protected the people in Hong Kong of their basic rights and protected from Beijing’s possible coercive action to curtail the peoples’ cherished rights, such as freedom of expression and the press, liberties unseen on the mainland, Beijing attempted to enact a clause in 2003 aimed at altering such liberties which resulted in massive street protests, leading the security chief Regina Ip to resign for the failure to check the protests. The new security law now is to circumvent Hong Kong’s legislature by directly enacting the new legislation.

The new security law is seen by the people in Hong Kong as the end of “One country, Two systems”, that gave Hong Kong limited form of autonomy, which is why it caused so much concern and disquiet. The new security legislation means the end of Hong Kong’s autonomy.

Reactions

The new law elicited sharp reactions from Washington and Europe. Critics feared it will crush wide-ranging freedoms, an essential element of Hong Kong's status as a global financial centre.14

When the territory was transferred to China, China promised to allow Hong Kong a high degree of autonomy for 50 years under what is known as the "One country, Two systems" formula of governance. Democracy activists however were sceptical, noticing that Beijing had increasingly tightened its grip over the city. From its side, Beijing has always disapproved of foreign elements interfering in its internal affairs.

Beijing’s Perspective

Beijing’s appointee in Hong Kong, Carrie Lam, accused the opponents of the new security law as “enemy of the people”.15 Lam accused the advocates of independence for “colluding with foreign forces” and undermining security. A Beijing official justified the new law as “like installing anti-virus software”.16 China says that the new law is aimed at a small minority of “troublemakers” and that it will not erode the legal rights that made Hong Kong such a popular financial centre, nor would it affect rights and freedoms or investor interests.

Responses to the Law

The threat perception and sense of insecurity was so palpable among the Hong Kongers after the law was passed and implemented that many feared of their future rights and planned leaving the territory en masse to other countries that were willing to welcome them. What was dreaded by them was their loss of freedom and rights that were denied to the people on the mainland and that they shall fall in the same category. Looking for safe havens, those fleeing Hong Kong started consulting immigration professionals and lawyers, property agents and recruitment portals for help and guidance.17 Such requests were seen in Malaysia, Australia, the UK, Thailand, Canada, Vietnam and the Philippines. Of these, Australia emerged the most favourite, where wealthy Hong Kongers wished to migrate. The reaction to the law is reminiscent of the exodus that the territory witnessed in 1997 when its control was transferred from Britain to China.

Hong Kong could end up being the loser as talent would migrate looking for greener pastures elsewhere. There shall also be capital flight as the wealthy would leave with their money to invest to their new countries of adoption. Britain, Australia, the US and Taiwan are willing to lay the red carpet to those from Hong Kong willing to choose these destinations. Hong Kong might even lose its tag of being a major financial hub in Asia. Not surprisingly, China warned the countries welcoming those leaving Hong Kong as meddling in its ‘internal’ affairs.

The United Nations human rights office was alarmed at arrests of those who opposed the ‘vague’ law.18 As per the draconian law, violators can be punished for crimes of secession, subversion, terrorism and collusion with foreign forces with up to life in prison. The mainland security agencies set up as per the new legislation for the first time with powers beyond city laws can extradite any violators to China for trial.

The world is outraged by China’s actions in Hong Kong. French President Emmanuel Macron told Chinese counterpart categorically that France continues to back the “One country, Two systems” principles for Beijing’s rule over the city. 19 The already tensed relations between the US and China is further aggravated with the Hong Kong crisis. The European Union too expressed its “grave concern”. It voted in favour of taking up the issue at the International Court of Justice in The Hague against China for enacting the new law.20 Hours before the passage of the law, U.S. Secretary of State Mike Pompeo indicated that the United States would stop selling defence-related materials and dual-use technology to Hong Kong.21 Japan’s Prime Minister Shinzo Abe too expressed “deep concern” and adhered to the “One country, Two systems” principles.22 Japan is even mulling over cancelling Chinese President Xi Jinping’s state visit to Japan altogether that was scheduled for early April but postponed owing the Covid-19 pandemic. Japan’s stance was praised by other G-7 nations. 23 The White House and Congress are also considering other sanctions measures such as denying visas for cadres responsible for the National Security Law, and even delisting Chinese enterprises from the New York Stock Exchange. 24 Australia-Japan-US Defence Ministers’ joint statement issued recently also expressed deep concern over China’s imposition of national security law in Hong Kong.

Contrarian View

Despite the scepticism over China’s intentions and actions over Hong Kong and the fear of the territory’s autonomy, David Dodwell, founder Chief Executive of Strategic Access and a former journalist at the Financial Times, writes in the latest issue of Global Asia (June 2020) that it is premature to write the obituary of Hong Kong. 25 Dodwell derives his optimism from his convictions on the following four points: (a) China would eventually become more like Hong Kong than vice versa; (b) Hong Kong’s natural advantage as the primary conduit for China’s huge and rapidly-growing international trade could only make it more economically important over time; (c) Hong Kong’s role as an important global trading hub shall not diminish and Beijing only benefits if this is maintained and so would not disturb; and (d) social unrest/malaise driven by economic shocks linked to anxieties by a minority segments and accentuated by the US-China trade war is just a passing cloud in international diplomacy and the national security law can help to restore some discipline and give confidence to the system.26 Given Beijing’s recent actions and behaviour, none of the four points made by Dodwell look convincing and that he could find himself in a minority in assessing Hong Kong’s future. Dodwell wrote his article days before the new security was issued. Now, he might have to revisit his opinion after perusing the contents of the law.

It might be instructive here to refer to the book written by Antony Dapiran, City on Fire: The Fight for Hong Kong27, wherein he gives a detailed background to the pro-democracy movement and technology-driven protest movement that challenged the might of China and its global standing. It would be premature to dismiss the future of Hong Kong, though the new national security law for the territory is worrying. Taiwan, always combative and at the receiving end of Beijing’s wrath, has already extended supporting hands as also others. The battle seems to continue for some time as either side unwilling to bend.

Assessment

China’s stance on Hong Kong needs to be read in the larger context of China’s long term ambitions to emerge as the sole superpower, eclipsing the United States. Hong Kong is just an example of the demonstration of China’s intentions and goals. China finds the time opportune that when the world attention is focused on battling Covid-19, it wants to flex its muscles in various fronts. The possibility of diverting domestic attention for fear of implosion, thereby claiming legitimacy could be another possibility for China’s belligerency. The future direction of global politics is pregnant with plenty of uncertainties as no one can read China’s intentions with any finality.

Endnotes
  1. Carol Anne Goodwin Jones, “How China’s New National Security Law Subverts Hong Kong’s Cherished Rule of Law”, 31 May 2020,https://thewire.in/world/hong-kong-china-new-national-security-law-rule-of-law. Also see, “HK shall not be moved”, The Statesman, editorial, 4 July 2020, https://www.thestatesman.com/opinion/hk-shall-not-moved-1502905874.html
  2. Willy Wo-Lap Lam, “Beijing Announces Its Intention to Impose a New “National Security” Law on Hong Kong”, China Brief, 26 May 2020, https://jamestown.org/program/jamestown-early-warning-brief-beijing-announces-its-intention-to-impose-a-new-national-security-law-on-hong-kong/
  3. Yew Wei Lit, “The intractable tug of war between China and Hong Kong”, 13 June 2020, https://www.channelnewsasia.com/news/asia/china-hong-kong-national-security-law-protest-virus-us-xi-lam-12829880?cid=h3_referral_inarticlelinks_24082018_cna
  4. Matt ho, “How Hong Kong national security law compares to legislation in other countries, https://www.scmp.com/news/china/politics/article/3092041/one-law-two-systems-how-chinas-national-security-law-hong-kong?utm_medium=email&utm_source=mailchimp&utm_campaign=dThe. The full text of the new law is available inside this story.
  5. “China's parliament approves Hong Kong national security bill”, 28 May 2020, https://www.aljazeera.com/news/2020/05/china-parliament-approves-hong-kong-national-security-bill-200528073103358.html
  6. https://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf
  7. “Hong Kong national security law: five key facts you need to know”, The Hindu, 1 July 2020, https://www.thehindu.com/news/international/hong-kong-national-security-law-five-key-facts-you-need-to-know/article31959413.ece
  8. Richard McGregor, “A mark of Beijing’s Tightening grip on Hong Kong”, Global Asia, vol. 15. No. 2, June 2020, pp. 74-75, https://www.globalasia.org/data/file/articles/7cb0b99856ac4db5c12f5b6f09ebad52.pdf
  9. Kanis Leung, “National security law: Hong Kong literary scene fears curbs on what can be written, published and sold in the city after legislation takes effect”, 21 June 2020, https://www.scmp.com/news/hong-kong/politics/article/3089933/national-security-law-hong-kong-literary-scene-fears-curbs
  10. “'Abduction' of China tycoon sparks fear in Hong Kong”, 1 February 2017 https://www.businesstimes.com.sg/government-economy/abduction-of-china-tycoon-sparks-fear-in-hong-kong. Also see, Zach Dorfman, “Disappeared”, Foreign Policy, 29 March 2018,https://foreignpolicy.com/2018/03/29/the-disappeared-china-renditions-kidnapping/
  11. “Hong Kong’s tumultuous path to the national security law”, https://www.macaubusiness.com/hong-kongs-tumultuous-path-to-the-national-security-law/. Also see, “Timeline of Hong Kong's struggle against Chinese hegemony”, https://www.wionews.com/photos/hong-kong-protests-china-timeline-of-hong-kongs-struggle-against-chinese-hegemony-309674#2003-first-security-law-attempt-309667
  12. https://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf
  13. “Hong Kong’s controversial security law: why is it and why does China want it?”, 22 May 2020, https://www.channelnewsasia.com/news/asia/hong-kong-protests-china-beijing-security-law-what-is-it-12760150?cid=h3_referral_inarticlelinks_24082018_cna
  14. “China unveils details of national security law for Hong Kong amid backlash”, 20 June 2020, https://www.channelnewsasia.com/news/asia/hong-kong-china-national-security-law-12854742
  15. “Hong Kong chief Carrie Lam says opponents of security law are 'enemy of the people'”, 16 June 2020, https://www.channelnewsasia.com/news/asia/hong-kong-chief-carrie-lam-security-law-protests-china-12839228?cid=h3_referral_inarticlelinks_24082018_cna
  16. “Hong Kong security law like 'anti-virus software': Beijing official”, 8 June 2020, https://www.channelnewsasia.com/news/asia/hong-kong-protests-national-security-law-china-target-12815868?cid=h3_referral_inarticlelinks_24082018_cna
  17. “Fearful of China’s new security law, Hong Kongers scramble for safe havens”, 4 July 2020, https://www.channelnewsasia.com/news/asia/hong-kong-protests-china-security-law-immigrate-12900244
  18. “UN says it is ‘alarmed’ at arrests in Hong Kong, concerned at ‘vague’ law”, 3 July 2020, https://www.channelnewsasia.com/news/asia/un-alarmed-at-arrests-in-hong-kong-china-national-security-law-12898304?cid=h3_referral_inarticlelinks_24082018_cna
  19. “France tells China it still backs ‘one country, two systems’ for Hong Kong”, 6 June 2020, https://www.channelnewsasia.com/news/france-tells-china-it-still-backs--one-country--two-systems--for-hong-kong-12811174?cid=h3_referral_inarticlelinks_24082018_cna
  20. Wen Mu, “Hong Kong version of the draft national security law: details released by the European Parliament”, 20 June 2020, https://p.dw.com/p/3e4s4
  21. Willy Wo-Lap Lam, “Beijing Imnposes Its New ‘National Security’ Law on Hong Kong”, 3 July 2020, https://jamestown.org/program/jamestown-early-warning-brief-beijing-imposes-its-new-national-security-law-on-hong-kong/.Also see, Jodi Xu Klein, “National security law: US ends exports of defence equipment and restricts dual-use tech to Hong Kong”, 30 June 2020, https://www.scmp.com/news/world/united-states-canada/article/3091113/national-security-law-us-ends-exports-defence
  22. “Japan watching Hong Kong situation with 'deep concern': Abe”, 8 June 2020, https://www.channelnewsasia.com/news/asia/japan-hong-kong-abe-china-deep-concern-12815194?cid=h3_referral_inarticlelinks_24082018_cna
  23. “Japan's stance on Hong Kong praised by other G7 nations: Suga”,https://www.channelnewsasia.com/news/asia/japan-hong-kong-abe-china-deep-concern-12815194?cid=h3_referral_inarticlelinks_24082018_cna
  24. Willy Lam, n. 21.
  25. David Dodwell, “Don’t write Hong Kong off prematurely”, Global Asia, vol. 15, no. 2, pp. 76-77, https://www.globalasia.org/data/file/articles/83dc71af0e508b13acd1cc91671aca36.pdf
  26. Ibid.
  27. See. Antony Dapiran, City on Fire: The Fight for Hong Kong, Paperback edition, 9 April 2020, pp, 288.

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