Ritik Kanoujia and Abhinav Singh, first-year law students at the National Law University, Jodhpur, India, discuss the implications of the recently enacted Chinese National Security Law...
China has been embroiled in numerous controversies since the onset of 2020. It has received significant flack worldwide as a result of a failure to report to the World Health Organization about the existence and spread of the novel COVID-19, as well as for engaging in a tense diplomatic and military stand-off with its neighboring country, India. The country finds itself in the eye of the storm once again, this time for imposing a sweeping, draconian “national security law” upon the territory of Hong Kong, which enables it to dictate the fate of the territory like never before. The legislation has been widely condemned by freedom aspirants in Hong Kong, countries including the United States and the United Kingdom as well as human rights organizations and activists. It came into force on June 28, 2020.
Hong Kong is a metropolitan area and special administrative region (SAR) of the People’s Republic of China. The sovereignty of Hong Kong was handed to China by Britain in 1997, following the latter’s 150-year reign of control over the territory, under a unique agreement – a mini-constitution called the Basic Law. The document embodies the principle of “one country, two systems”, which serves as the foundation of the relationship between China and Hong Kong and grants unmatched autonomy to the latter.
The Basic Law enshrines rights such as freedom of assembly and freedom of speech upon Hong Kongers – neither of which exist in mainland China – and also sets out the structure of governance for the territory. Hong Kong is governed by a chief executive, who is aided by a formal body of advisors that constitute the Executive Council. The former is obligated to implement the Basic Law, sign bills and budgets, promulgate laws, and issue executive orders. The territory has a two-tiered semi-representative system of government, comprising the law-making Legislative Council and district councils, as well as an independent judiciary.
Article 23 of the Basic Law mandates Hong Kong to enact its own national security law. It states that Hong Kong
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.
However, previous attempts by the Legislative Council to implement the above-mentioned Article and create the Hong Kong national security law have been met with protests, due to its unpopularity. Consequently, China has stepped in and formulated the new security law to ensure that the territory has a legal framework to deal with what it views as serious challenges to its authority. It derives the mandate to formulate laws for the territory of Hong Kong from Article 18 of the Basic Law which states that national laws can be applied in Hong Kong if they are placed in Annex III of the document, provided that they are confined to defense, foreign affairs and matters outside the limits of the autonomy of the territory. The legislation comprises 66 Articles and aims to punish acts of secession, subversion, collusion as well as terrorism to maintain the prosperity and stability of the territory of Hong Kong. However noble the legislative intent may seem, the truth is far from it.
The security law has been imposed on the territory of Hong Kong by China in the aftermath of massive protests that took place last year against the latter’s decision of implementing the extradition bill in Hong Kong, which proposed for the extradition of criminal suspects in Hong Kong to mainland China for trial. Evidently, the legislation is a tool at the disposal of China to quell dissent aimed against it. Another reason for secrecy and hastiness in the implementation of the legislation can be attributed to China’s concerns regarding the results of elections later this year. In case the Legislative Council falls under the control of Democrats, it would have been difficult to implement the legislation since they are of the view that the law curbs the autonomy of Hong Kong as a SAR.
The security law has been condemned on several grounds.
Firstly, the new security law impedes upon Article 5 and Article 12 of the Basic Law, which provides for Hong Kong to be an independent, capitalist territory till 2047 and declare that it enjoys a high degree of autonomy, respectively, by curbing the rights of free speech and assembly enjoyed by Hong Kongers. The European Union has expressed “grave concerns” regarding the serious implications the law can have on the territory’s independence.
Secondly, the vague and broad-worded nature of the penal legislation has been scrutinized for encompassing a swath of what has so far been considered free speech. This may lead to the possibility of wide-ranging interpretations, and the right to interpret lies only in Beijing. For instance, Article 29 of the legislation states that anyone who conspires with foreigners to provoke “hatred” of the Chinese government, or the authorities in Hong Kong, can be said to have committed a criminal offense. However, whether this provision includes criticism of China’s governing Communist Party remains unclear.
Thirdly, the new security law has endangered the primary principles of the rule of law and judicial autonomy in Hong Kong. The legislation has authorized the territory’s chief executive to appoint judges to hear national security cases (Article 44). In addition, trials can be held in secret (Article 41) and without the presence of a jury (Article 46). The legislation enables the handing over of entire cases – from investigation to judgment to punishment – to mainland Chinese authorities (Article 56). Moreover, foreign nationals outside of Hong Kong also face prosecution under the law (Article 38).
Fourthly, the security law contravenes several international treaties to which Hong Kong is a signatory party. Article 7 of the United Nations Declaration on Human Rights Defenders explicitly recognizes that: ‘everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance’. Additionally, by virtue of Article 39 of the Basic Law, the International Covenant on Civil and Political Rights (ICCPR) is put into effect in Hong Kong. Article 9 of the treaty states that: ‘everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’ Article 18-22 of the treaty safeguards certain inalienable rights, which also find a mention in the Basic Law. These obligations placed upon the territory of Hong Kong are violated by the new “anti-protest” law.
Lastly, the legislation has also empowered China to establish a new security office in Hong Kong, with its own enforcement personnel – neither of which would come under the local authority’s jurisdiction. This provision gives Beijing extensive and direct powers to influence and shape life in the territory that it has never had before, and violates Article 22 of the Basic Law, which prevents any department of the central Chinese government from interfering in the internal affairs of Hong Kong.
The security law has been universally condemned by local inhabitants of Hong Kong, several countries across the world, and human rights activists and organizations. Ted Hui, an opposition legislator in Hong Kong, told the BBC: “Our freedom is gone, our rule of law, our judicial independence is gone.” As per pro-democracy activists in Hong Kong, the Chinese security law “spells the death knell for the region.”
The UK Prime Minister Boris Johnson has raised his concern over the security law since it constitutes a serious breach of the Sino-British Joint Declaration, 1985. The UK Foreign Secretary Dominic Raab has labeled the measures a “flagrant assault” on freedoms of speech and protest. The country has updated its travel advice on Hong Kong, saying there is an: “Increased risk of Detention, and deportation for a non-permanent resident.” As per the new plan, it has decided to offer the British National Overseas status and citizenship to Hong Kongers, in case China does not withdraw the controversial legislation. Taiwan and Japan have also raised their concerns and pledged ‘necessary assistance’ to Hong Kongers. U.S. Secretary of State Mike Pompeo said that China had broken their promise to Hong Kong. The U.S. Congress is apprehensive that the erstwhile flourishing economy of Hong Kong may suffer as a consequence of strain in the relationship with the other countries.
In spite of robust allegations, China has remained firm in its stance with regard to the controversial law. The Foreign Ministry spokesman Zhao Lijian has urged countries to look at the situation objectively while laying importance on the need to distance domestic affairs from international interference. Chief Executive Carrie Lam, Hong Kong’s pro-China leader, has backed the law to play a vital role in “restoring stability” in the territory and thus, has labeled China’s move as “the most important development in relations between the central government and Hong Kong since the handover.” Moreover, President Xi Jinping has openly hinted at the possibility of war against those who are willing to divide China, validating the present legislation in the process.
It becomes clear from the above discussion that China, akin to any other authoritarian set up, values ‘forced unification’ more than the freedom and liberty that it accords to its citizens. The controversial legislation is another step in the same direction. The democratic aspirations of Hong Kong have been dealt a huge blow, and it would not be far-fetched to deem this legislation as the death knell for democracy in the territory. The world has taken cognizance of this grave matter, with the U.S. Senate acting pro-actively to place sanctions upon China for its irrational behavior. More of the same is required to quell and dilute such arbitrary powers that China enjoys in contemporary world politics.
Ritik Kanoujia is a first-year student of National Law University, Jodhpur, and has a keen interest in legal writing and drafting. The author also has been previously published in JURIST and many other renowned blogs.
Abhinav Singh is a first-year student of National Law University, Jodhpur, and has an interest in Constitutional and Criminal Law.
Suggested citation: Ritik Kanoujia and Abhinav Singh, Is Chinese Draconian Security Law the Death Knell For Democracy In Hong Kong?, JURIST – Student Commentary, July 27, 2020, https://www.jurist.org/commentary/2020/07/kanoujia-singh-chinese-security-law/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at firstname.lastname@example.org.
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