Reading Between the Lines: The Hong Kong National Security Law


[Jonathan Lim] The anticipated implementation of a National Security Law in Hong Kong has drawn widespread opposition over the validity of its implementation under the city’s Basic Law, and its projected impact upon civil liberties in the former British colony. On May 21, political leaders from across China convened in Beijing for the third session of the 13th National People’s Congress (NPC) to debate various issues of national importance, including the need to implement a National Security Law in Hong Kong.

The issue was introduced on the second day of the NPC as item No.5 on the agenda, under the title of “Establishing and Improving the Legal System and Enforcement Mechanism of Hong Kong” (National Security Law). Accordingly, on May 28 the drafting of the law was rubber stamped by the NPC, affirming the inevitable implementation of the law sometime around July 2020 when the drafting process is completed by the NPC. Following this, the Hong Kong government is expected to enact its provisions into the city’s constitution without hesitation.

The law was presented by Beijing following nearly 12-months of continuous protests in the city, driven by pro-democracy opposition against the now withdrawn Extradition Law Bill proposed by the Hong Kong government. Consequently, Beijing has since concluded that it would be impossible for the Hong Kong government and the Legislative Council (LegCo) to pass a national security law under Article 23 of the city’s constitution (“Basic Law”) under their own autonomy, thus necessitating the implementation of this law for the establishment of a legal framework and enforcement mechanism to safeguard China’s national security in Hong Kong.

The National Security Law

The draft law contains an introduction and seven articles, concerned with affirming the “One Country, Two Systems” principle, punishing activities which endanger national security, opposing foreign interference in Hong Kong’s affairs, safeguarding national sovereignty and territorial integrity, empowering Beijing to establish local institutions and enforcement mechanisms, and holding the Chief Executive accountable to the central government on the issue of national security.

Its substance aims to ban secession, foreign interference, terrorism, and all seditious activities aimed at toppling the central government and any external interference in the former British colony - finalising the death of the “One Country, Two Systems” model which has so governed Hong Kong over the past two-decades since its reunification with the mainland.

The NPC has emphasised that the introduction of the law is for the benefit of closing national security loopholes in the city and strengthening “enforcement mechanisms”, as distinguished from the national security provisions covered under Article 23 of the Basic Law. However, many pro-democracy groups and politicians are concerned that this indication constitutes mere lip service, and serves to further erode the principle of “One Country, Two Systems.”

How will the Law be Implemented?

An examination of Hong Kong’s Basic Law reveals how Beijing intends to introduce and enforce the National Security Law by sidestepping the city’s legislative process. This centres upon Article 18 of the Basic Law, which specifies that the mainland government may only apply National Laws in Hong Kong if they are listed under Annex III of the Basic Law.

The article contains the legal mechanism which enables Beijing to bypass the city’s legislature – where the law may thereafter be imposed through promulgation by Hong Kong’s pro-Beijing government. This will be conducted by the current Chief Executive, whom will promulgate the law by way of publishing it in the LegCo Gazette.

The effect of passing the National Security Law through promulgation means that the law will be passed in its existing state, word-for-word, as authored by the NPC Standing Committee. The law will be passed without any consultation by the Hong Kong LegCo and its committees, ignoring the opinions and self-determination of Hongkongers. While the implementation of the National Security Law in Hong Kong will require the LegCo to pass an ordinance, Beijing’s control over the council makes this all but a formality.

Since 1997 the NPC standing committee has made several decisions to add or remove legislation from this list of laws via promulgation, with six national laws presently listed under Annex III – covering such issues as National Day procedures, diplomatic privileges, and China’s Exclusive Economic Zone.

However, it must be noted that the article further requires that, before a decision to add to or delete from the list of laws in Annex III is made by the NPC Standing Committee, the Basic Law Committee as well as the Hong Kong Government shall be consulted. In practice, this requires extensive legal debate by the Basic Law Committee, and places additional pressure on the Chief Executive Carrie Lam as the public face of the central government in the city.

Analysis

While Beijing may advance that existing protections for freedom of speech and freedom of the person enshrined under Article 28 of the Basic Law will remain unchanged, and will prevent any potential abuse of the National Security Law for nefarious purposes, this is rendered irrelevant by several factors.

Firstly, by the contents of the enacted National Security Law itself. The law itself may become a “master key” - granting unlimited power to Beijing by removing any constraints offered by the law, judiciary, and executive branches of the Hong Kong government by virtue of “national security.” In reality, the mere existence of this power would effectively remove any distinctions between the law applied on the mainland versus that in Hong Kong, thus dismantling the principle of “One Country, Two Systems” in its entirety by cutting off its legs from beneath.

Secondly, by Beijing’s effective control over the city’s judicial system. This is granted under Article 158 of the Basic Law, whereby the NPC Standing Committee is empowered to issue an interpretation on relevant provisions of the Basic Law in relation to judicial matters before the city’s highest court. This effectively allows it to vitiate the decisions of Hong Kong’s judiciary by arbitrarily issuing an opposing interpretation of the Basic Law.

Third, Beijing’s continuing domination within the LegCo, being the city’s unicameral legislative body. Presently 42 of the council’s 70 seats are occupied by pro-Beijing politicians, providing Beijing with majority control over matters presented and debated before the council. The passage of the National Security Law would embolden the council to enact more draconian laws, further solidifying Beijing’s control over the council.

Further, the Hong Kong Bar Association has voiced its concerns that the National Security Law contains several worrying and problematic features which may render its implementation impractical, highlighting that the existing Article 23 of the Basic Law already covers such matters, and that the NPCs decision to bypass the LegCo in introducing the law may not comply with international human rights standards under the International Covenant on Civil and Political Rights (ICCPR).

Summary

Despite growing popular discontent over the National Security Law, it is clear that Beijing will not be swayed from its objective of settling the issue of Hong Kong once and for all. This is highlighted by the reality that the issue of Hong Kong ties intimately with Beijing’s core national interests of national sovereignty and territorial integrity.

Reading between the lines, Beijing already holds much authority over the executive, judiciary, and legislative branches of the city’s government - vitiating the principle of separation of powers and neutering the rule of law. With Beijing set to consolidate effective control over all branches of Hong Kong’s government, as the central government seeks to bar foreign judges from national security cases, it is only a matter of time before Beijing can create, interpret, and pass judgement over laws at will and without restriction.

Despite assurances from Carrie Lam and Beijing that the implementation of the National Security Law will not affect Hong Kong’s freedoms, and will “only target a handful of lawbreakers,” it is clear the anticipated law will have a wider reach than indicated upon the city’s sociopolitical environment, representing the premature end to its identity and autonomy.

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Jonathan Lim is a Young Leader Fellow with Pacific Forum, and former East Asia Fellow with Young Australians in International Affairs. His expertise spans Chinese foreign policy, cyber warfare, and space law.

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