The Hong Kong Security Law

Introduction

The CCP led the Chinese legislature on 28 May,2020 approved a new security law for Hong Kong potentially sparking another wave of Anti-China protests after the last year’s protests against the Extradition Law imposed in Hong Kong.[1] Last year's protests led to the Chinese Government taking the bill back, but this time it's even more controversial. The legislation is aimed at cracking down on sedition and activities aimed at toppling the Central Government in Beijing. These activities have led to potentially pushing Hong Kong to it’s darkest times under the Chinese rule since 1997.

What is the Draft All About?

The Official draft, as passed by the National People's Congress in Beijing, is known as the "Decision of the National People's Congress on Establishing and Completing the Hong Kong's Special Administrative Region's Legal System and Implementation Mechanisms for the Preservation of National Security (Draft)." The various provisions of the draft are stated below.

Article 1 of the Draft states China's policy of accurately implementing One country two systems and maintain a high degree of autonomy for HK SAR.

Article 2 of the Draft reiterates that it will firmly oppose foreign interference in the internal matters of its country and further intends to penalize acts of separatism, subversion, infiltration, and destructive activities.

Article 4 of the Draft provides that the Chinese Government can establish certain organizations of the Central People's Government, such as the Ministry of State Security’s branches in Hong Kong R, to fulfill relevant duties to safeguard national security by the New Security Law for HK SAR.

Article 5 requires the HK SAR Chief Executive to prepare and send reports to the Chinese Government on matters related to National Security to crack down on sedition.

Article 6 authorizes the NPCSC to draft a national security law for Hong Kong, and subsequently, insert it in Annex III of the Basic Law so as to be applicable in the HK SAR and at last, implement the law by way of promulgation, thus bypassing the HK LegCo.

What does it do?

China and Hong Kong are under a very complex political relationship known as the One Country Two Systems Principle. Hong Kong, a democracy, is technically a part of China, but it operates as a Semi Administrative Region(SAR) after the British handover of Hong Kong to China in 1997. The joint declaration between the Government of the UK and China, a UN filed international treaty ensured that the current social and economic system in Hong Kong SAR would remain unchanged for the next 50 years and guarantees rights of freedom of speech and assembly or association.[2] The New Security Law undermines the freedoms as agreed before the handover and threatens to give China more power over Hong Kong. It essentially converts the HK-China relationship from One country two systems to one country one system. In the face of the Hong Kong Protests in 2019, Joshua Wong referred to the New law as “The security law for the communist regime."It faces severe criticism as it is believed that it is being brought to crackdown against the opposition and pro-democracy leaders in Hong Kong asking for free and fair elections in HK SAR.

Why it’s against the Basic Law

The issue arises with the jurisdiction of the Government in Beijing to make such a law. Article 18(3) of the Basic Law provides that the NPCSC shall add laws made by it to the Annex iii shall only be related to defense and foreign affairs and any other matters that fall out of the autonomy of the HK SAR.[3] Moreover, Article 66 provides that the Legislative Council of the HK SAR shall enact, amend, or repeal laws by law and legal procedures.

Moreover, the Basic Law of the HKSAR provides that:

The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.[4]

It can be comprehended by the above provisions of the Basic Law that only the HK SAR Legislative Council on its own motion, can make laws to prohibit any acts of subversion, treason, sedition, and secession against the Central People's Government whereas in the Hong Kong Security Law Draft, it is not the LegCo but the China Mainland Government making the law in this regard and therefore the capacity to make such a law is not under the jurisdiction of the NPCSC to make such a law as it contradicts the Article 23 and Article 18.

International Reaction

The International community has fiercely criticized the move by the Chinese Government. The Former Governor of Hong Kong Christopher Patten called this as a comprehensive assault on the city's autonomy, the rule of law and fundamental freedoms. The UK Foreign Secretary Dominic Raab said that the UK would extend visa rights for about 350000 BNO passport holders, leading to a pathway for future citizenship if Beijing went ahead with its plans to impose a national security law on Hong Kong.[5]US President Donald Trump has referred to this new law in the HK SAR as a tragedy and went on o state that China has smothered HK’S Freedom by replacing One country two systems with one country one system.[6]Moreover, he added that his administration would begin the process of ending the American Government's special Government with Hong Kong, including on trade and law enforcement. The US Secretary of State Mike Pompeo said “no reasonable person can assert today that Hong Kong maintains a high degree of autonomy from china given facts on the ground."

Conclusion

The New Hong Kong Security Law is a grave concern, and it might soon lead to the revival of the protests. The principle of "Might is Right" is not good for the One Country Two Systems Relationship. The future of Hong Kong is very uncertain. Nobody knows what will happen post-2047 when the 50-year term of the Basic law expires. The United Nations should take required action, and the International Community and all States should maintain Balance of Power to address the problem and tactfully resolve the problem while conforming to International Laws and Commitments. Any such law should be brought out only after consultations with relevant stakeholders. All States must urge the Chinese Government to respect norms and use diplomacy and existing mechanism to resolve it's an issue with Hong Kong.

[1] Lily Kuo, 'Chinese parliament approves controversial Hong Kong security law.'

The Guardian (Beijing, 28 May 2020)

[2] Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, Clause 3(5)

[3] The Basic Law Of The Hong Kong Special Administrative Region Of The People’s Republic Of China, Article 18(3)

[4] The Basic Law Of The Hong Kong Special Administrative Region Of The People's Republic Of China, Article 23

[5] Patrick Wintour and Verna Yu, ‘UK says it will extend Hongkongers' visa rights if China pursues security laws’

The Guardian (Hong Kong, 28 May 2020)

[6] Unknown, ‘Trump targets China over Hong Kong security law’ BBC News(Unknown, 30 May,2020)