Hong Kong Is Part of the Mainland Now: Beijing’s New Security Law Has Stifled the Territory’s Autonomy and Hopes
By Michael C. Davis, Foreign Affairs, July 2, 2020
How Beijing brings mainland repression to HK and why Beijing criminalizes “collusion” and asserts “extraterritorial jurisdiction”
By Michael C. Davis and Victoria Tin-bor Hui, The Diplomat, July 03, 2020
Beijing enacted the “Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” on June 30, ahead of the 23rd anniversary of the city’s handover on July 1. This law effectively abrogated the “one country, two systems” model enshrined in the 1984 Sino-British Joint Declaration and the 1990 Basic law, the city’s mini-constitution, and rescinded longstanding civil and political rights. On the first day of its implementation, 10 out of 370 people arrested during the July 1 protests have been charged with violations of the new national security law.
Beijing’s System Has Taken Over the Hong Kong System
Hong Kong’s return to China in 1997 was premised on the “one country, two systems” model, which creates a firewall to protect Hong Kong’s open society from the mainland’s one-party dictatorship — to be achieved by “Hong Kong people ruling Hong Kong” under a “high degree of autonomy.” Mainland departments are expressly barred from interfering in Hong Kong affairs. Mainland laws, with limited exception, are not to apply in the city. Central to this constitutional structure is a commitment to the “ultimate aim” of “universal suffrage,” as well as the rule of law and the fundamental rights and freedoms spelled out in international human rights covenants.
The law sets up a local Hong Kong Committee for Safeguarding National Security chaired by the chief executive and composed of cabinet-level officials along with top law enforcement personnel. It operates under Beijing’s direct supervision through a mainland-appointed national security advisor. Its deliberations are held in secret and not subject to judicial review. Its budget is also not bound by current legal restrictions.
Moreover, a Central Government Office for Safeguarding National Security, whose officials are assigned from mainland security bureaus, is set up in the city to guide, oversee, and supervise local officials in national security matters. Its officials, while ostensibly required to obey local laws, are beyond local jurisdiction in exercising their duties. They further have the prerogative to refer “complex” and “serious” cases to mainland jurisdiction.
Where cases are handled locally, the law limits local judges’ independence. The chief executive is empowered to select a limited panel of judges from among current and retired judges to try national security cases. Selected judges are removed if they “make any statement or behave in any manner endangering national security.” Judges cannot exercise judicial review as the power of interpretation is vested solely with the NPCSC. The accused are denied bail by default “unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.” They may also be denied a jury by the prosecution. They are subject to sentences from three years to life imprisonment.
For elected offices in the Legislative and District Councils, this law repeats the Basic Law requirement of a loyalty oath. Analysts fear that support for the national security law will be added to allow the authorities to disqualify opposition candidates in subsequent elections.
Criminalization of Dissent
Although the national security law promises to protect “the freedoms of speech, of the press, of publication, of association, of assembly, of procession, and of demonstration” in accordance with international conventions, its many vague and overarching provisions prevail over preexisting local laws in case of discrepancies.
The authorities claim that this law is targeted at only a tiny minority of violent protesters. However, “subversion” covers not just “acts by force or the threat of force” but also “other unlawful means,” which could include unauthorized peaceful protest. “Terrorism” refers to violence against property and disruption of transport as well as injuries to human lives. “Collusion” involves disrupting government policies, undermining elections, calling for sanctions, and provoking hatred. Moreover, the law encompasses not just concrete “acts,” but also loosely defined “activities” of “incitement,” “assistance,” “abetment,” and “provision” of financial and other forms of support.
The criminalization of nonviolent means of protest began on day one under the new law. For the first time since the handover, the police banned an annual demonstration planned for the July 1 anniversary, thus rendering any gathering an “unlawful assembly.” The riot police turned out in force and held up this warning: “If you are displaying flags or banners/chanting slogans or conducting yourself with an intent, such as secession or subversion, which may constitute offences under the HKSAR national security law, you may be arrested and prosecuted.” The police arrested 370 protesters and charged 10 of them under the new law for holding or possessing materials that said not only “Hong Kong independence,” and “Liberate Hong Kong, revolution of our times,” but also “conscience” and “justice.” Zhang Xiaoming of Beijing’s Hong Kong and Macau Affairs Office stated that spreading “false claims” about police killing on August 31 last year would constitute incitement of “hatred” toward the authorities. Pro-democracy businesses are being warned by the police to take down “Lennon walls” of sticky notes with political messages.
This law further encourages confessions and reporting on offenses committed by others to root out dissent.
The Law’s Global Reach
There is much speculation that a mass arrest will happen when the world’s attention is diverted elsewhere. Here comes the crime of “collusion” and Beijing’s assertion of “extraterritorial jurisdiction” to cut off global support for Hong Kong. The national security law applies to individuals and corporations, residents and nonresidents alike, inside or outside China, who have committed the above acts or activities. Foreign nationals who are also permanent residents of Hong Kong are subject to the same punishment as local residents. Those who have no residency status in Hong Kong are “subject to deportation as the sole or an additional punishment.” Since June last year, overseas Hong Kongers have raised funds for the protests and mobilized for governmental and parliamentary support around the world. The U.S. Congress has held multiple hearings and passed the 2019 Hong Kong Human Rights and Democracy Act and the 2020 Hong Kong Autonomy Act.
Nevertheless, the potential charge of “collusion,” which carries life imprisonment and worse, did not deter Cheuk-yan Lee from testifying at the House Foreign Affairs Committee on July 1. Hong Kongers abroad seem equally determined to push for stronger U.S. policies against Beijing even if this means that they can no longer go home.
Implementation rules for Article 43 of the National Security Law + Operating Principles and Guidelines for Application for Authorization
to Conduct Interception and Covert Surveillance: Barrister Anson Wong Yu-yat said the new implementation rules were far more alarming than the national security law itself (SCMP); Police handed power to do warrantless searches, freeze assets, intercept comms, control internet (HKFP)
HRIC annotated bilingual chart of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region
Beijing appoints tough-talking party official Zheng Yanxiong to lead powerful new agency in Hong Kong while Luo Huining will act as Carrie Lam’s national security adviser (SCMP). Background on Zheng’s crackdown in Wukan (SCMP).
Chinese version to prevail over English one, despite Hong Kong being officially bilingual (SCMP)
How China Scammed Hong Kong (Yi-zheng Lian)
How China’s new national security law will hobble Hong Kong’s pro-democracy movement, by Maggie Shum
China outlaws global activism (Axios)
The new Hong Kong, where activists vow to defy ‘rule by fear’ (The Guardian)
‘GFHG, SDGM’: Hong Kong netizens reimagine illegal slogan as protesters find workarounds (HKFP)
‘Hidden language’: Hongkongers get creative against security law
Residents use wordplay including repurposed Chinese Communist party
dogma to express frustration (The Guardian)
“Hong Kong people will stand in line to buy copies of the paper, they buy the stock. It’s an everyday form of resistance when you can no longer go out and protest.” (NYT. After the arrest of Jimmy Lai and the raid of Apple Daily)
“One country, two systems” might be dead, but whether that means the end of Hong Kong is a different question, Hui said. “Hong Kong is not dead unless the people let it.” (Vox)
“You can be accused of anything” (RFA)
Webinars on the NSL organized by Hong Kong Democracy Council
“Hong Kong under the national security law” (Global Dispatches, a United Nations and global affairs podcast).
“Recent Developments in the China/Hong Kong Relationship with Dr. Victoria Tin-bor Hui” (World Affairs Council for Greater Reading)
For legal analysis, see
Jerry Cohen’s blog http://www.jeromecohen.net