In an unprecedented move, the Chinese Parliament on the 28th of May had approved the decision to move forward with national security legislation for Hong Kong. The law is aimed to tackle secession, subversion, terrorism, and foreign interference thereby facilitating increased surveillance, intimidation, and interference with the Freedom of Speech and Expression. The legislation has prompted widespread condemnation and strained China’s relations with the United States and Britain. Therefore, the national security bill is deemed to undermine the city’s autonomy. Another point of concern is that the move is taking place unilaterally in a hasty manner without any consultations and with the officials of Hong Kong. Implementing legislation of such nature in Hong Kong without any participation from its legislature or judiciary would undermine the principle of ‘one country, two systems’.
Raison D’être behind the Law
China’s move to pass the National Security Law not only erodes the city’s autonomy but also strikes a major blow to Hong Kong’s Independent Judiciary and democratic rights. The ulterior objective behind the legislation is to invest the Chinese government with more power and control over the city and prevent terrorism and seditious activities that aim to topple the central government. The Law would enable China to implement its policies in Hong Kong which would allow China to have absolute control over it by crippling Hong Kong’s democracy and autonomy.
Earlier in 2019, China had tried to pass the ‘Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019’ which provided that the individuals who commit crimes in Hong Kong would be tried in China. The move had caused great unrest in the city and as many as 17,00,000 people participated in the mass protest against the Law. Ultimately, China realized that it has lost its influence and control over Hong Kong. Therefore, in order to assert and reaffirm its authority, China has come up with the National Security Law.
The legislation is likely to evolve as an official death sentence for Hong Kong as it grossly undermines the principle of ‘one country, two systems’ which prescribes Hong Kong’s special status. The law if enacted is bound to slowly or abruptly turn independent critical news outlets in Hong Kong into a government mouthpiece. The legislation is likely to impose fines or provide for suspensions to the media houses which cover sensitive topics regarding China’s policies and bureaucracy. Furthermore, retroactive charges for the offence of subversion and separatism may be imposed on individuals who were critical of the Chinese policies and legislations. Such an application of charges would amount to a grave violation of the Rule of Law in Hong Kong. The National Security Law could infringe on the individual’s internet freedom. Regulations such as Data localization requirements, intermediary liability, and designations of fake news are likely to follow from the National Security Bill. The citizens of Hong Kong are politically outspoken and depict their views openly in the form of various artistic and academic expressions. Many artists and scholars are now of the view that the law is likely to prosecute them for subversion if they express their critical views in the public domain. Chinese bodies such as the Ministry of State Security would be given free hand to operate in Hong Kong so that they can spy on educational institutions, media houses, and individual’s social media handles to keep a check on dissent against the Chinese authoritarian regime. Therefore, If the National Security Law is implemented then it is highly likely that civil liberties and other democratic rights would be quashed.
While it remains unclear as to how the provisions of the National Security Law will be imposed, legal experts and scholars are puzzled and have raised at the constitutionality of the Law. Article 23 of the Basic Law, the Mini Constitution of Hong Kong provides that the autonomy to enact laws prohibiting subversion, secession, foreign collusion, sedition, and terrorism vests with Hong Kong. However, in the present case, the National Security Law is a bill passed by the Chinese Parliament and not the Hong Kong government. This has opened a floodgate of constitutional debates and discussions in Hong Kong. Under the provisions of Article 18 of the Basic Law, national laws cannot be enforced in Hong Kong other than those mentioned in Annex III. Annex III laws refer to legislations related to foreign affairs, defense, and other subjects, not falling within Hong Kong’s autonomy. China attempts to add the National Security Legislation in Annex III in order to make it enforceable in Hong Kong. However, given the nature of the legislation, it doesn’t appear to fit under any of the subjects mentioned under Annex III. Therefore, the move of China to add the Law in Annex III is ultra vires of the Basic Law of Hong Kong.
The National Security Law which is estimated to be enacted by August this year has already sparked small protests in Hong Kong’s streets. Fear looms large as the city could witness mass demonstrations against the Law as and when it nears its enactment. The Law could be the last nail in Hong Kong’s Coffin as it abruptly erodes the city’s autonomy. The law is bound to alter Hong Kong’s international relations, especially with the United States. In November 2019 after a series of pro-democracy protests in Hong Kong, the US president signed the Hong Kong Human Rights and Democracy Act in order to safeguard civil liberties and freedom in the city. Given the strained relationship of US-China in wake of the Covid-19 Pandemic, the US is likely to oppose the move by Mainland China. This could further catalyze tensions between the two superpowers. With China announcing that it will deploy its intelligence agencies in Hong Kong to track any threats to the national security, uncertainty looms large as to whether these agencies will carry out enforcement activities or not. The Law clearly goes against the basic tenets of the International Covenant on Civil and Political Rights. However, history has it that China does not fear the violation of any International Legal Order as is pertinent from its dismissal of the Joint Sino-British Declaration.
ABOUT THE AUTHOR
Amol Verma is a 2017-2022 Batch B.B.A., LL.B. (Hons.) student at Chanakya National Law University, Patna. His areas of interest include Intellectual Property Law, Criminal Law, Constitutional Law, and Arbitration Law.