Hong Kong national security law

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The Hong Kong national security law is proposed legislation on Hong Kong security required under Article 23 of the Hong Kong Basic Law. Article 23 stipulates that the law must be enacted by Hong Kong alone without any other input; it is in fact designed to prevent such interference in Hong Kong territorial affairs.

However, in 2020, the Standing Committee (NPCSC) of the National People's Congress (NPC) of the Chinese government announced plans to draft a national security law for Hong Kong. The NPC approved a decision that authorises the NPCSC to enact a national security law for Hong Kong if Hong Kong does not "legislate national security law according to the Basic Law as soon as possible". In response to the Chinese interference, the United Kingdom announced that if a security law drafted by China was approved, it would open a route for all Hong Kong residents born under British rule to become British citizens.

A Hong Kong attempt in 2003 to fulfil legislation under Article 23 did not succeed after mass demonstrations; prior to this, when under British rule, the local colonial government had attempted security legislation that China blocked.

Background

Main article: Hong Kong Basic Law Article 23

Article 23 of Hong Kong's Basic Law provides that Hong Kong Special Administrative Region will "enact laws on its own" for the Region's security and to prevent political bodies outside the Region from "conducting political activities in the Region" or otherwise interfering with Hong Kong's independent security.

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 organisations or bodies from conducting political activities in the Region, and to prohibit political organisations or bodies of the Region from establishing ties with foreign political organisations or bodies.

— Hong Kong Basic Law Article 23

A national security law would relate to three ordinances that makes up Hong Kong's penal law, the Official Secrets Ordinance, Crimes Ordinance and Societies Ordinance. The Societies Ordinance in particular covers elements of security, as it was intended to prevent the creation of criminal secret societies and triads. In 1949, with the influx of migrants from China, it was reintroduced and amended to specifically mention "foreign political organisations". The Crimes Ordinance covers the handling of dissent within the region. In place since 1971, and never amended, the ordinance sets a legal standard allowing people to be imprisoned simply for handling material deemed to be against the government, without need for evidence.

Legislation attempts

1992–97

Lord Chris Patten of Barnes; Patten had been appointed Governor of Hong Kong in 1992 to oversee the last years of British rule and the handover. Under his leadership, social and democratic reforms were introduced to the territory.

After the Tiananmen Square massacre in 1989, with Hong Kong residents concerned over their civil liberties, the Societies Ordinance was reviewed; it was amended in 1992, relaxing some of the restrictions against being able to register some societies, but this was repealed after the handover in 1997. According to the Hong Kong Human Rights Monitor, China amended the ordinance in 1997 "as part of a package of China's effort to emasculate the Hong Kong Bill of Rights".

In 1996, the Hong Kong Legislative Council (as part of the British colonial government) introduced the Crimes (Amendment)(No.2) Bill 1996. This bill would have amended the Crimes Ordinance, changing sedition legislation that had existed since 1971 and was described by Hong Kong as "archaic". Specifically, the bill proposed legalising dissent of the government, with the council declaring that the existing ordinance "[was] contrary to the development of democracy [as it] criminalizes speech or writing and may be used as a weapon against legitimate criticism of the government". The bill failed as it was strongly opposed by Beijing, leaving a gap in national security legislation.

A "scaled-down" version of the Crimes Ordinance amendment was pushed through. It gave a more limited definition of "sedition" and increased territorial defences; it was signed by Hong Kong Governor Chris Patten days before the 1997 handover, but was quickly discarded by the Chinese before it could ever come into effect.

2003

Tung Chee-hwa was responsible for Hong Kong's failed legislation attempt. Protests in June and July 2003 were in part due to the economic downturn after, and mishandling of, the SARS coronavirus epidemic.

See also: National Security (Legislative Provisions) Bill 2003 and Hong Kong 1 July marches § 2003

In September 2002, the Hong Kong government released its "Proposals to Implement Article 23 of the Basic Law" Consultation Document. Consultation lasted until December 2002, being concluded early after protests drew tens of thousands of people against the proposal; concessions were made, but the proposals did not return to public consultation. The National Security (Legislative Provisions) Bill 2003 was introduced in February 2002, aiming to comply with the requirement under Article 23 that the Hong Kong government should enact national security legislation "on its own". However, the bill was abandoned due to overwhelming opposition, noting the then-unprecedented number of protesters.

The 2003 bill would introduce sedition legislation, as well as offer amendments to the ordinances. While the Region was being encouraged to create legislation in line with the Johannesburg Principles, it did not, and the 2003 provisions would have been more restrictive of civil liberties. The changes were to narrow the definition of "sedition", requiring someone to deliberately commit acts against the government; to add a 'likelihood' clause, requiring a burden of proof; and to add subversion and secession offences. This last addition was the most problematic part of the bill, with the others seen as steps towards protection. The subversion and secession legislation would make it illegal to threaten the presence and stability of the People's Republic of China (PRC) under laws handling treason and war, and also used vague and undefined terms that left the legal threshold for prosecution unclear.

Though the bill had been introduced in February 2003, Asia was experiencing the SARS epidemic, and major protest towards it did not happen until Hong Kong recovered at the start of June. In June 2003, the pro-democracy camp mobilised the public to oppose the bill, and on 1 July, the sixth anniversary of the handover, more than a half million Hong Kong residents took to the streets against then-Chief Executive Tung Chee-hwa and Secretary for Security Regina Ip, who was in charge of the bill. In the evening of 6 July, Liberal Party chairman James Tien decided to withdraw from the "governing coalition" by resigning from the Executive Council in protest. Knowing that the bill would not be passed without the Liberal Party, the government finally decided to postpone it, before it was shelved indefinitely.

2010s

Pro-Beijing Hong Kong politicians have spoken about the proposed law since independence movements grew in Hong Kong. When China announced that "[Beijing] will absolutely neither permit anyone advocating secession in Hong Kong nor allow any pro-independence activists to enter a government institution", then-Chief Executive Leung Chun-ying said Hong Kong would enact a security law targeting pro-independence movement in Hong Kong. In 2018, director of the Liaison Office of the Central People's Government in Hong Kong Wang Zhimin urged the Hong Kong government to enact national security legislation as he said "Hong Kong is the only place in the world without a national security legislation – it's a major weakness in the nation's overall security, and it has a direct impact on residents".

2020 Chinese involvement

See also: 2019–20 Hong Kong protests

In 2019, the Hong Kong government introduced an extradition law amendment bill proposing to allow extradition to China, sparking ongoing protests. The bill was later to be withdrawn. The South China Morning Post (SCMP) reported that the central government of the PRC was of the view that due to the protests the political climate in Hong Kong would preclude the passage of a bill under Article 23, while Chief Executive Carrie Lam added that the protests made the law more necessary than before, and so China resorted to enactment of security measures through the National People's Congress (NPC) instead.

NPCSC decision

Main article: National People's Congress Decision on Hong Kong national security legislation

The National People's Congress Decision on Hong Kong national security legislation authorises the Standing Committee of the National People's Congress (NPCSC) to enact laws for "a sound legal system" in the territory. An NPCSC deputy claims that the Article 23 legislative provisions still have to be passed by August 2021.

After the passage of the decision, Hong Kong citizens began looking for ways to emigrate and leave Hong Kong, feeling that the law would fundamentally damage their rights of expression and freedom. Ten times the usual number of web searches about emigration were recorded after the decision was announced. Following the British BNO announcement, a spike in interest in properties in the United Kingdom, Australia, and Canada occurred.

Chinese legislation plans

Chinese plans for the legislation include most prominently criminalising "separatism, subversion, terrorism and foreign interference", which many interpret as a crackdown on civil liberties, government critics, and the independence movement. China also plans to implement an intelligence service in Hong Kong under the law, using the PRC's own Ministry of Public Security police force that currently has no power or influence in Hong Kong. Various national governments expressed concern that the Chinese plans would undermine Hong Kong autonomy and the One country, two systems policy. The NPC approved the Chinese plans on 29 May 2020, with state media outlet People's Daily declaring that the approval "sends a strong signal [...] to anti-China forces in Hong Kong desperately fighting like a cornered wild beast: your defeat has already been decided".

United Kingdom's response

Hong Kong protestors flying both the Union Jack and the colonial Dragon and Lion flag in 2019

See also: China–United Kingdom relations

The UK, of which Hong Kong is a former colony, encouraged China to back down on the security law per the provisions of the Sino-British Joint Declaration: terms of the UK handing sovereignty of Hong Kong to China included allowing Hong Kong to maintain autonomy and its British-based form of governance. British First Secretary and Foreign and Commonwealth Secretary Dominic Raab explained the British perspective of needing to step in with China violating the Joint Declaration in their attempts to pursue the law. On 3 June, the Chinese government announced that they consider the Joint Declaration to have become void as soon as power was transferred in 1997.

We are not threatening anything. We are just pointing out as a matter of black and white in the joint declaration that China signed that it is in violation, direct violation, of undertakings freely given and we expect – as we expect any member of the international community as they expect of us – China to live up to those responsibilities.

— Dominic Raab

On 2 June both Raab and the Shadow Foreign Secretary Lisa Nandy announced that the UK should set about creating a large international alliance beyond the Five Eyes to pressure China into stepping back on the matter of Hong Kong security, as well as to counter the "pro-China global alliance" that Raab said Beijing had formed to intimidate countries that oppose it. Calls for such an alliance had been voiced on 1 June by seven former Foreign Secretaries of the UK.

Extending Hong Kong British national rights

See also: British National (Overseas)

In late May and early June 2020, members of the British Cabinet also announced measures to provide a route to British citizenship for 3 million Hong Kong residents. On 3 June, Prime Minister Boris Johnson announced that if China were to continue pursuing the law, he would allow Hong Kong residents to claim a British National (Overseas) passport (BNO) and open a path to British citizenship for them. Raab said that the UK would sacrifice trade deals with China in order to support Hong Kong, but that presently it will remain in conversation with the international community on the matter. Chinese foreign minister Zhao Lijian threatened the UK in response, while Hong Kong protestors felt that the British offer did not go far enough. Hong Kong barrister Martin Lee, who helped draft the Basic Law, thought the UK was being generous but said that "no matter how generous you are in the provision of passports and so on, there are still large numbers of people who are not eligible for one reason or another", highlighting the vast number of oppressed protestors who are young people, born after the handover.

Raab had announced at the end of May that the UK were considering extending BNO rights to give right of abode, which Zhao acknowledged would be an internal British policy change, but still claimed China would have "the right to take countermeasures". Raab delivered his proposal to the House of Commons on 2 June, and was ambivalent about whether it would only apply to the current BNO passport holders, telling the Commons: "we have said that we will allow the approximately 300,000-plus passport holders, along with their dependents, to come to the UK". His measure plans to allow BNO passport holders to apply for a visa, remain in the UK for an initial period of twelve months instead of six as previously, allow them to apply to study and work, and thereby provide them a path to citizenship.

Further to Raab's proposal the day before, Johnson's 3 June announcement would cover the approximately 3 million Hong Kong residents born before 1997. He was less ambivalent on whether only people who had applied for a BNO passport before the handover in 1997 would be eligible, writing in The Times:

Today about 350,000 people hold British Nationals (Overseas) passports and another 2.5 million people would be eligible to apply for them. At present these passports allow for visa free access for up to six months. If China imposes its national security law, the British government will change its immigration rules and allow any holder of these passports from Hong Kong to come to the UK for a renewable period of 12 months and be given further immigration rights including the right to work which would place them on the route to citizenship.

— Boris Johnson

Five Eyes response

Five Eyes intelligence-sharing alliance

The UK held a teleconference with its other former colonial powers in the Five Eyes alliance (the United States, Canada, Australia, and New Zealand) in the first few days of June, where they discussed the Hong Kong situation and requested that should the BNO extension go ahead, the other countries would share the burden of taking in Hong Kongers in the resulting exodus. Australia, with strong ties to Hong Kong, did not announce new measures but confirmed that "Hong Kong people can apply for a range of relevant visa categories to work and live in Australia" already. Various political leaders across Australia have called on Prime Minister Scott Morrison to go further and at least formally match the UK's offer.

Foreign ministers from the Five Eyes members and Commonwealth realms of Australia, Canada, New Zealand, and the UK jointly wrote a letter to the United Nations requesting "a new special envoy to monitor the impact of the law on Hong Kong", saying that "the erosion of the rule of law and the increasingly serious and urgent human rights situation in Hong Kong" needed to be addressed, especially noting the Chinese security law proposal came in the week of the anniversary of the Tiananmen Square massacre.

Political analysis of British and Commonwealth response

Boris Johnson's stance on Hong Kong is considered firm

Johnson had previously voiced support for Hong Kong autonomy against the proposed extradition bill that incited the protests in 2019. Johnson is seen as taking a more forceful approach to Hong Kong autonomy than former Prime Minister David Cameron; The Guardian's diplomatic editor Patrick Wintour wrote on 3 June 2020 that Cameron had been scared of the public perception of an influx of Hong Kong nationals to the UK in 2015 (when he encouraged China to allow Hong Kong to elect its leader without Beijing interference but went no further), while Johnson's hard stance to allow such mass migration is seen as a risk worth taking because it would also fundamentally undermine China's economy.

Wintour and Guardian journalist Helen Davidson suggested that the ambiguity and possible conflicting statements on the number of Hong Kong residents the BNO measures will be extended to could reflect several things. One reason may be differences in opinion within the Cabinet, but Wintour and Davidson also write that it may be a tactic "to leave China guessing about the potential scale of a British-enabled brain drain from Hong Kong, if Beijing seeks to suppress human rights in the territory".

The director of Hong Kong Watch, a human rights NGO, Johnny Patterson, felt that Johnson's announcement was "a watershed moment in Sino-British relations [because] no sitting PM has made a statement as bold as this on Hong Kong since the handover". Patterson added that it shows "the severity of the situation on the ground [and] the fact that the British government genuinely, and rightly, feel a sense of duty to citizens of Hong Kong and are going to do all they can to stop them becoming the collateral damage of escalating geopolitical tensions".

Davidson and Guardian Australia journalist Daniel Hurst note that despite powerful political calls in the country, and a precedent of good relations with Hong Kong and helping evacuate Chinese people in times of emergency, Morrison had a detached approach to the issue of welcoming fleeing Hong Kongers. They said Australia was "issuing statements of concern jointly with likeminded countries including the US, the UK and Canada, rather than speaking out on its own", and said this was because Australia had recently strained its relations with China when it was early to call for an inquiry related to the spread of COVID-19.

External links

• Gan, Nectar (23 May 2020). "A national security law is coming to Hong Kong. Here's how it has been used to crush dissent in China". CNN. Archived from the original on 23 May 2020. Retrieved 23 May 2020.
• Lee, Yen Nee (28 May 2020). "China approves controversial national security bill for Hong Kong". CNBC. Retrieved 28 May 2020.

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