Legal Methods CIA III

 
 
 
 

Validity And Implications Of The Hong

Kong National Security Law 
Index:
Sl Title Pg No
No
1 Introduction 3

2 Recent History of The HKSAR 4

3 Constitutional Provisions and the Implementation of the NSL 5

4 Concerns over the NSL 6 & 7 

5 Implications of the NSL 8 &9

6 Conclusion 10

7 Bibliography 11
Introduction
The Law of the People’s Republic of China on Safeguarding National Security in the Hong
Kong Special Administrative Region (from now on HKSAR) is the key national security
legislation (NSL) comprising six chapters and 66 articles, currently implemented in Hong
Kong. On the 30th of June at 2300 hrs, the legislation was implemented, which lit the match to
a series of consequences both domestic and geo-political. The law at once stripped the region
of its autonomy, endangered its pro-democratic institutions, and attacked its celebrated
freedoms of expression and speech enjoyed by the residents of Hong Kong. The pro-
democratic movement claims that the new law violates the obligations laid upon of the
People’s Republic of China (from now on PRC) by virtue of it being a signatory to the Joint
Declaration on the Question of Hong Kong, also signed by the US and the UK. The law
stresses the ‘One Country Two Systems’ Principle (OCTS) enshrined in the previous
agreements and the Basic law, by altering the political and legal autonomy of the region. The
law prematurely erodes the “high degree of autonomy” promised to the HKSAR by the PRC
for a period of 50 years, from 1997 to 2047. It is also asserted that the new law violates the
principles of human rights. The potential extra territorial operation of the law has raised the
eyebrows of lawmakers the world over with Australia, New Zealand, UK, US, Canada and
Germany suspending their extradition treaties with the PRC. 

The legislation was implemented by the Standing Committee of the National People’s
Congress by including it in Annex III of the Basic Law – the region’s “mini-constitution”.
Annex III of the Basic law involves legislation “confined to those relating to defence and
foreign affairs as well as other matters outside the limits of the autonomy of the Region.”
Recent History of The HKSAR 
Hong Kong was colonised and came under the control of the British as a result of the First
Opium war. It remained a colony from 1841 to 1997.  The territory along with its sovereignty
was handed over to China on 1 July, 1997 with accordance to the provisions laid by the 1984
st

China-United Kingdom Joint Declaration on the Question of Hong Kong. The joint
declaration recognises a transition period for 50 years, from 1997 to 2047 during which
China pledges among its “basic policies” towards Hong Kong, to vest “independent judicial
power, including that of final adjudication”—would “remain unchanged for 50 years,” or
until July 1, 2047.  This arrangement is popularly referred to as the ‘One Country Two
Systems’ Principle(OCTS)

The reason for observing the transition period was that Hong Kong under the British rule was
politically and culturally different than the rest of China. The period ensures the smooth
cultural assimilation of Hong Kong to China. 

As required by the Joint Declaration, in 1990 the National People’s Congress of China passed
the ‘Basic Law’ of the HKSAR. This document acts as a “mini constitution” which legally
enshrines the concepts of OCTS, a “high degree of autonomy” among other freedoms
enjoyed by its residents.
Constitutional Provisions and the
Implementation of the NSL
An article of the Basic Law is of particular relevance to China’s decision to enforce the
National Security Law in the HKSAR. Article 23 states 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.”

Therefore, according to the said provision of the law, HKSAR was mandated to introduce a
national security law to prevent threats to its sovereignty under the PRC. Successive
governments have tried to enact a law in adherence to Article 23 but to no avail. The
HKSAR’s 2003 effort to do so prompted an estimated 500,000-person protest in the city and
the subsequent resignation of then-Hong Kong Secretary of Security and now Legco member
Regina Ip Lau Suk-yee. 

However, in 2014, owing to ‘The Umbrella Revolution’ and its subsequent inspired protests
in 2018, the National People’s Congress of the People’s Republic of China, thought it would
be in the mainland’s best interest to stifle dissent and opposition which they thought,
threatened the communist rule in the mainland region. As per Article 18 of the Basic Law,
national laws could only be applied in the HKSAR by its inclusion in Annex III to the Basic
Law.  Annex III to the Basic Law covers legislation regarding foreign policy, defence and
national security. Beijing chose this route. 
China deemed the National Security Law to be necessary to combat forces that were “anti-
China” and those that wanted to bring chaos to Hong Kong. This reasoning was strongly
backed by the recent outbreak of anti – extradition bill protests, that served as a reminder to
the PRC of Hong Kong’s rising claims for autonomy. 

Concerns over the NSL 

 The 66 articles of the legislation met strong opposition by pro-democracy supporters in Hong
Kong and the world over. The law categorized offences into four and imposed harsh penalties
for the same. Secession (Article 20), Subversion (Article 22), Terrorist Activities, and
collusion (Article 24) are punishable by a maximum sentence of life imprisonment.
Vandalism of public property would be recognized as terrorism thereby attracting the
relevant punishment. The new law overnight dealt a blow to the promising democratic
movement in the region by stifling dissent and allowing authorities to take action against any
entity they think is a threat to national security. This law can effectively be used to target
political opponents of Beijing and can further increase Beijing’s foothold over the
region’s administration.

The judicial autonomy of the region is also under attack, as the law allows several cases
related to national security to be sent and tried in mainland China. This is of particular
concern as Mainland China is notorious for having a nearly 99% conviction rate. 

Further certain cases of national security would be tried behind closed doors, by judges
appointed by the Chief Executive, eroding judicial independence. Notably, HKSAR is the
only Common Law region in China.  Article 60 of the law also mandates the setting up of
‘The Office for Safeguarding National Security’ in Hong Kong, staffed by officials from
mainland China to further the cause of the law. This office and its officials are outside the
jurisdiction of the local laws, hence enabling them to wield unaccounted power. The National
Security law also permits authorities to wiretap individuals they think are a threat to national
security, thus enabling a police state with blatant disregard for fundamental freedoms of
privacy and expression. 

The most controversial part is article 38 of the law which grants the mainland government
the authority to prosecute non- residents for acts of subversion, secession, terrorism, and
collusion related to Hong Kong, even when committed overseas. This extraterritorial
application of the law violates several international agreements and undermines the
laws of other nations. 

The Basic law of the HKSAR guarantees the protection of human rights, according to the
standards established in international conventions. Hong Kong is a part to the International
Covenant on Civil and Political Rights (ICCR) through the UK when it was a colony of the
former. Article 39 of the Basic Law is the provision related to the ratification of international
conventions. The Hong Kong Bill of Rights Ordinance (BORO) officially incorporated the
principles of such international conventions into HKSAR’s domestic laws. 

In this context, Hong Kong aims to ensure a balance of individual rights and civil liberties
with the state’s motive to preserve law and order in the society. The NSL however disrupts
this balance by removing restrictions to the state’s power when addressing the offenses it
describes. For Example, the Johannesburg principles on the ICCPR mentions that “only an
act that incites a violent overthrow of the government should be considered as a threat to
national security” and nothing else should be used to curtail individuals’ rights.

However the offense of “subversion” mentioned under Article 22 under the NSL aims to
criminalise the “organising, planning and participation” in acts even where the main objective
is not the overthrow the government violently. Such wide interpretation of the provisions of
the law erodes civil liberties. Individuals could be held culpable for their tweets and social
media posts. It also curtails discussion in an academic environment. 

Soon after the passage of the law, many residents of Hong Kong deleted their social media
posts and any material on the public forum that might hold them liable under the strict new
law.
Implications of the NSL 
Diplomatic Consequences
Owing to the extraterritorial application of the law, some countries have framed their own
laws and policy measures as a response. The extent to which the law affects Hong Kong’s
autonomy can severely impact foreign trade, businesses, expatriate communities, tourism and
education. It can also affect the global view of Hong Kong as an international financial
centre. 
The actions of the countries include suspension or termination of extradition treaties, travel
advisories to its citizens, relaxation of visa and immigration rules to allow the residents of
Hong Kong to move easier to other countries. As mentioned before, The US, UK, Canada,
Australia, Germany and New Zealand have suspended the extradition treaties with the PRC.
Further, the UK and Australia have eased visa and immigration compliance for easier
movement of the residents of Hong Kong. 

The United States have taken their measures further by revoking the ‘separate territory’ status
to Hong Kong. US President Donald Trump revoked the special status accorded to Hong
Kong under the United States – Hong Kong Policy Act 1992. The act granted reduction of
tariffs and investments into Hong Kong. It has also placed sanctions against 11 Chinese and
Hong Kong officials, who according to the US, undermines the OCTS principle and Hong
Kong’s autonomy under the Hong Kong Autonomy Act of 2020. This severely impacts trade
with Hong Kong and negatively affects multiple stakeholders. 

The European Union has expressed concern over the law and its effect over civil liberties. It
has presented a coordinated plan of action in response to the law, to examine the implications
of the law on asylum, immigration and other related fields.

The extraterritorial application of the NSL detailed under article 38 can cast criminal liability
on a wide range of entities. An individual regardless of citizenship or residency can be
prosecuted under the NSL.  This can be illustrated with an example: if Canadian citizens in
Canada advocate that Hong Kong should have the right to self-determination and encourage
Hong Kongers to form a group to achieve such a goal, they can be arrested in principle if they
as much as transit through Hong Kong.  

Such an extraterritorial reach is unreasonable and interferes with the domestic affairs of other
states. Hong Kong has a large Indian Diaspora with individuals who work in finance,
shipping, banking and service industries. The community is 38,000 strong. 

India currently exercises an extradition treaty with Hong Kong under the 1997 Surrender of
Fugitives Offenders Treaty. In this context, India should consider altering its visa and
residence policy for Indian nationals travelling to Hong Kong. Owing to the genuine threat of
criminal liability being pinned upon Indian nationals during travel or transit, in suspicion of
violating the NSL, India ought to issue travel advisories similar to that of the US and UK. 

The law also attempts to tighten its control over foreign media outlets, educational
institutions, and social media. Under the garb of national security, the law gives the Chinese
government in Beijing new expansive powers to manage and oversee educational institutions
and social organizations. The law also grants the authorities the power to remove content off
social media without a judicial warrant, thereby violating the freedom of expression under
Article 27 of the Basic Law.
Conclusion
The NSL presents irreversible change to the geo-political scenario of the world. Amidst
growing tensions between the US and China over the Coronavirus and the trade wars, the
National Security legislation given another reason for the west to oppose China and change
its policies to the loss of latter. 

It is of great interest to see India’s stance on this issue in the backdrop of the aggressions
exhibited by China along the border. India views China to be a necessary evil. One with
which, India’s economy is largely dependent on. This makes India’s moves all the more
impactful to the geo political scenario of South Asia in particular.  

Bibliography

Articles: 
       ‘Hong Kong’s National Security Law is bad for business’ –
https://asia.nikkei.com/Opinion/Hong-Kong-s-national-security-law-is-bad-for-business

·         Application of National Laws in HKSAR – https://www.legco.gov.hk/research-

publications/english/essentials-1516ise07-applying-national-laws-in-hong-kong.htm

·         HKSAR National Security Law Explained –

https://www.mayerbrown.com/en/perspectives-events/publications/2020/07/hksar-national-
security-law

·         https://amp.scmp.com/news/hong-kong/politics/article/3093774/hong-kong-national-
security-law-legal-experts-see-pitfalls

https://www.orfonline.org/research/hong-kongs-national-security-law-implications-for-india/

https://transitjam.com/2020/06/30/national-security-law-english-translation/

https://fas.org/sgp/crs/row/R46473.pdf

Articles of Amnesty International, Freedom House, and the Indian Express

Books:
    The Basic Law (text)

·         The Law of the People’s Republic of China on Safeguarding National Security in the
Hong Kong Special Administrative Region (text)[English version for reference only]