2020 Hong Kong national security law

This article is about the law, and attempts to enact it, in Hong Kong. For the decision taken by the National People's Congress to enact the law, see National People's Congress decision on Hong Kong national security legislation.

Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region
Standing Committee of the National People's Congress of the People's Republic of China
Territorial extent	People's Republic of China (including Hong Kong; see also #Article 38)
Passed by	Standing Committee of the National People's Congress of the People's Republic of China
Passed	30 June 2020 (2020-06-30)
Signed	30 June 2020 (2020-06-30)
Commenced	30 June 2020 (2020-06-30)
Status: In force

2020 Hong Kong national security law
Traditional Chinese	香港國家安全法
Simplified Chinese	香港国家安全法
Transcriptions Standard Mandarin Hanyu Pinyin Xiānggǎng guójiā ānquán fǎ Yue: Cantonese Jyutping Hoeng1 gong2 gwok3 gaa1 on1 cyun4 faat3
Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region
Traditional Chinese	中華人民共和國香港特別行政區國家安全法
Simplified Chinese	中华人民共和国香港特别行政区国家安全法
Transcriptions Standard Mandarin Hanyu Pinyin Zhōnghuá rénmín gònghéguó xiānggǎng tèbié xíngzhèngqū wéihù guójiā ānquán fǎ Yue: Cantonese Jyutping Zong1 hua2 Ren2 min2 Gong4 ho2 gue2 Hoeng1 gwok3 dak6 bit6 hang4 zing3 keoi1 gaa1 gong2 on1 cyun4 faat3

The Hong Kong national security law, officially the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, is the piece of national security legislation concerning Hong Kong. Such a law is required under Article 23 of the Hong Kong Basic Law, which came into force in 1997 and stipulates that the law should be enacted by the Hong Kong Special Administrative Region. In June 2020, the law was enacted by the Chinese Standing Committee of the National People's Congress instead of the Hong Kong Legislative Council.

In response to apparent mainland intent to bypass Hong Kong's local legislature, the United Kingdom (UK) 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 similar attempt in 2003 by Hong Kong to fulfil legislation under Article 23 did not succeed after mass demonstrations; during British colonial rule, the local colonial government had attempted to pass security legislation that China blocked. Both the 2003 and 2020 attempts at legislation occurred during coronavirus outbreaks (SARS and COVID-19, respectively), with each exacerbating the negative response to the proposals.

The text of the law has drawn strong international criticism, including provisions to accept more Hong Kong migrants in the UK as well as the United States, Australia and Taiwan. Besides declaring the law to be against human rights for the people of Hong Kong, there was international outcry against Article 38. This article says China can apply the law to, and subsequently arrest, anybody from anywhere in the world.

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.

A national security law would relate to three ordinances that make 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.

The Hong Kong Bill of Rights ensures freedom of speech, but Hong Kong barrister Wilson Leung has said that China may find a way to override this in legislation they introduce. Leung cites the fact a law imposed by China would be considered national law – while the Hong Kong Bill of Rights is "local" and so would be deemed subordinate by Beijing – and that the Standing Committee of the National People's Congress (NPCSC) is the highest authority on interpreting the Basic Law, and so could "say that the new security law cannot be restrained by the Bill of Rights" if they want.

National security legislation in Mainland China is viewed as controversial by those outside the country. First implemented in 1993, China's national security law became more restrictive under Chinese Communist Party general secretary Xi Jinping, who set up a National Security Commission (that he heads himself) shortly after he came to power.

Past legislation attempts

1992–1997

Lord Patten of Barnes, who 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.

Societies Ordinance

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 (HRM), China amended the ordinance in 1997 "as part of a package of China's effort to emasculate the Hong Kong Bill of Rights". The 1997 amendments include the proviso that should the relevant officials "reasonably believe" that prohibiting a society "is necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others", it can be banned without evidence. HRM said that:

The use of the term "national security" is particularly objectionable because the concept has frequently been used in China to criminalise the peaceful exercise of the rights of expression and to persecute those with legitimate demands like democracy and human rights. Its inclusion raises fears of extension of such Mainland Chinese practices to Hong Kong especially in the light of Article 23 of the Basic Law.

— 1997–98 Memorandum submitted by the Hong Kong Human Rights Monitor, Appendix 5, paragraph 136

The international response to this 'national security law' was to invoke the Siracusa Principles, which says that national security "cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order", only against outside threats. International jurists declared that including 'national security' in the ordinance dealing with local societies was unwarranted and inappropriate because "it is difficult to suggest that a society or a demonstration in Hong Kong will threaten the existence of China", and any local threat can be handled with normal public order laws. Despite this, the 'national security' ground was introduced. While "national security" was defined as "safeguarding of the territorial integrity and the independence of the People's Republic of China", there was no explanation of what constituted a threat to this, nor how it should be implemented.

Crimes Ordinance

In December 1996, the Hong Kong Legislative Council (as part of the British colonial government) introduced the Crimes (Amendment)(No.2) Bill 1996. The catalyst for introduction was the forthcoming handover, with the initial amendments being mostly technical and removing reference to the monarchy. In turn, it sought proposals to change the articles on treasonable offences. 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

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

See also: Article 45 Concern Group

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 2002–2004 SARS outbreak.

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 2003, 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 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 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", 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".

Background of 2020 Chinese government involvement

See also: 2019–20 Hong Kong protests and Hong Kong Basic Law § Autonomy under Chinese sovereignty

When I reported in 1997 on the Hong Kong celebrations bidding farewell to British rule, there was one question on all lips. It was: how long would Beijing's 50-year pledge of "one nation, two systems" survive? The guesses were five years, perhaps 10. China would surely milk the cash cow for all it was worth, but any sign of trouble and Beijing would instantly wipe this "imperialist pimple" off the map. No one dreamed China's patience would last 23 years.

Simon Jenkins

In 2019, the Hong Kong government introduced an extradition law amendment bill proposing to allow extradition to Mainland China in certain well-defined exceptional circumstances. This sparked continuing protests. The bill was later withdrawn. The South China Morning Post 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.

On 18 June 2020, the Chinese government introduced a draft to the NPC, aiming for the session to take three days. This is a much more rapid process than bills in the NPC, which go through three different rounds of approval.

NPCSC decision

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

On 22 May 2020, the NPC approved a decision to authorise the NPCSC to enact a national security law for Hong Kong if Hong Kong did not "legislate national security law according to the Basic Law as soon as possible".

The decision authorises the 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 announcement that it would open a route to British citizenship for Hong Kongers born under British rule, a spike in interest in properties in the United Kingdom, Australia, and Canada occurred.

Responses and analysis regarding Chinese involvement

Analysis of Chinese government involvement

Chinese vice premier Liu He meeting with US president Donald Trump in May 2018. The two nations' deteriorating relations have been suggested as a cause for the Chinese government imposing more restrictions on Hong Kong.

Dr. Brian Fong, a political analyst in Hong Kong-Mainland Chinese relations, explains that the move is a dramatic change in Chinese policy, and a risky one that could lead to Beijing "losing access to foreign capital and technology through Hong Kong".

The American diplomat of Asian affairs Daniel R. Russel wrote in The Diplomat on 3 June 2020 that China was "fully aware of both the local and the international reaction it could expect" when the NPC passed its decision about the legislation. Russel explained that the reaction in 2003, the 2019 protests, and some US sanctions favouring Hong Kong over Mainland China set the baseline for response to the decision. He also noted that China's reputation was already low internationally because of the COVID-19 pandemic (noting that, "ironically", it was in the same position as in 2003 with SARS and the legislation), especially in the US where "public attitudes toward the other nation have taken a sharp turn for the worse" because of the pandemic that originated in China. However, he added that Beijing had at the time an "increased level of resolve [and] tolerance for negative consequences"; he wrote that forceful economic action from the US may prompt the Chinese government to retaliate with military action in Hong Kong, suggesting that both nations have a disregard for the territory if it can be used for benefit in their trade war and warning that "Hong Kong may be martyred in the process".

Sir Malcolm Rifkind, British Foreign Secretary at the time of the handover, said in June 2020: "China does have an Achilles' heel when it comes to Hong Kong. If China pushes too far with what they are seeking to do, they will not absorb a prosperous significant financially important Hong Kong into the body of China. They will be left with a hollow shell".

On 9 June 2020, The Guardian's China specialists Tania Branigan and Lily Kuo published a report titled "How Hong Kong caught fire: the story of a radical uprising". In it, they wrote that "the nature of [Chinese government involvement] is as alarming as its content: it sets a precedent of Beijing forcing unpopular legislation on Hong Kong", in open defiance of the handover terms. They also look at the approach of the law, explaining that Beijing has given "material security in place of political freedoms" to its people in Mainland China, and plans to do the same in Hong Kong because it sees all issues as purely economical and protests only escalating because of "troublemakers and hostile foreign powers". In terms of how it is being executed, the pair assert that in 2020, "Beijing has abandoned any pretence of winning hearts and minds", instead using force to prevent democracy politicians and activists from having platforms, which Branigan and Kuo say is a plan to use fear to suppress Hong Kong, as "persuasion" has not worked.

The Chinese government's legal basis for involvement comes from the Chinese constitution declaring Hong Kong part of China, and Article 18 of the Hong Kong Basic Law allowing for Chinese laws to be valid in Hong Kong if they are included in Annex III. Deutsche Welle expects that the NPCSC national security law will stand as a Chinese national law that applies to Hong Kong, as it will be added to Annex III; Dang Yuan wrote for Deutsche Welle that "Beijing wants to maintain the appearance of Hong Kong's autonomy and continues to insist that Hong Kong pass its 'own' corresponding law" in alignment with the NPCSC legislation. Deutsche Welle wrote that China chose mid-2020 as the time to intervene with a restrictive law because of the likelihood of a democratic majority winning in the Hong Kong elections in September, meaning another Hong Kong attempt at a national security law would be unlikely.

Hong Kong response

Further information: National People's Congress decision on Hong Kong national security legislation § Domestic responses

File:Hong Kong protest against proposed national security law on 24 May 2020.jpg

Hong Kong residents protesting against the proposed national security law on 24 May 2020.

A large number of Hong Kong residents opposed the Chinese government proposals. The prospect of any national security law has always been unpopular, but protestors in 2020 said that the new proposals "strikes at the heart of Hong Kong's civic political identity, its success as an international hub. But most of all it strikes at people's sense of belonging". Some Hong Kong opponents of the law hope it will cause the West to sanction China by revoking special treatment for Hong Kong, which will in turn damage China's economy. One used the Cantonese slang term lam chau to describe this.

The Hong Kong Bar Association, the city's professional body representing its barristers, issued a statement saying that it was "gravely concerned with both the contents of the [national security law] and the manner of its introduction." The statement noted that the law was enacted in a way that prevented the city's lawyers, judges, police and residents from understanding its contents in any way prior to its coming into force. The Hong Kong politician Margaret Ng believes that the Chinese government has wanted to implement a national security law in Hong Kong under their terms for years, and are using the 2019 protests as an excuse, saying that "China has always found it difficult to accept the kind of freedom and restraint to power that Hong Kong has under a separate system". Man-Kei Tam, the Hong Kong director of Amnesty International, described the Chinese legislation as "Orwellian".

In light of the passing of the national security law on 30 June, prominent democracy activists Joshua Wong, Nathan Law, Agnes Chow, and Jeffrey Ngo announced that they would be leaving Demosistō, which had been involved in lobbying in the US for the passing of the Hong Kong Human Rights and Democracy Act and the suspension of the city's special trade status. Shortly afterward, Demosistō was disbanded and all operations were ceased. Several pro-independent groups announced that they had ended their operations in Hong Kong, fearing that they would be the targets of the new law. Law fled the country shortly afterwards. Adrian Brown from Al Jazeera observed the passing of the law created a chilling effect in the city. According to him, when his team began interviewing ordinary people about their opinions on the passing of the law, many of them declined to comment, a phenomenon which he perceived to be "unusual".

Taiwan response

Taiwanese President Tsai Ing-wen expressed her disappointment with the controversial law and announced that a special office for coordinating humanitarian assistance to the Hong Kong people would officially open on the first of July in response to the law's passage. The Democratic Progressive Party warned that this was the end of the "one country, two systems" policy for Hong Kong and that both Hong Kongers and Taiwanese people travelling in Hong Kong should take care. The head of the Mainland Affairs Council Chen Ming-tong described the law as "a decree issued by the Celestial Empire to the people of the world" due to its impacts on people worldwide not just in Hong Kong.

United Kingdom's response

Sure, handover promises to the UK were made but [Xi Jinping] was not going to let some Western attachment to liberty trump loyalty to the motherland. Not on his watch. Enter the security law.

Stephen McDonell, 30 June 2020

See also: Responses to the 2020 Chinese involvement with Hong Kong national security law and 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 stated that China was 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.

At the start of June 2020, Raab and former Foreign Secretaries expressed the need to form a large international alliance to exert pressure on Beijing.

The biannual 11 June 2019 UK Report on Hong Kong (covering the last six months of 2019) had Raab more firmly warn China against interference, as well as reiterating the UK's right to comment on Hong Kong. The report requests that China abstain from interfering in the September elections in Hong Kong, and accuses the Chinese government of torturing a British diplomat, Simon Cheng, who visited the Mainland when working at the British Consulate in Hong Kong. Six days later, the UK said that a new human rights law, which has been stalled in Whitehall for several months, could be used to "sanction Chinese officials if Beijing presses ahead" with the national security law. The British law is to be a form of Magnitsky legislation, for the government to sanction those who commit acts repressing human rights.

Extending Hong Kong British national rights

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

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 to support Hong Kong.

Raab delivered a proposal on right of abode legislation to the House of Commons on 2 June. 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 this proposal, Johnson's 3 June announcement would cover all of the approximately 3 million Hong Kong residents born before 1997.

The extent of the scheme was clarified on 12 June 2020 by Home Secretary Priti Patel in correspondence with Johnson. All people eligible for BNO status, as well as their dependents, will be allowed to enter the UK under the scheme. This is still criticised for leaving a gap of young adults born after 1997 and who are older than 18 (no longer dependents) who will not be able to access the scheme. She added that Hong Kong residents could start to come to the UK without restrictions while the scheme is still being set up, if the national security law is passed.

On 1 July, Johnson announced the full plans, extending the visa-free period. He said that all BNO passport holders and their dependents would be granted right to remain in the UK for five years, including being free to work and study. After five years they can, under normal British nationality law, apply for settled status and then, a year later, for citizenship.

International responses

The UK held a teleconference with its allies in the Five Eyes alliance (the US, 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, notably did not announce new measures.

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", especially noting the Chinese security law proposal came in the week of the anniversary of the Tiananmen Square massacre.

Following persuasion from the UK, all members of the G7, notably including Japan, signed an official statement both urging China to reconsider the national security law and expressing concerns about human rights in Hong Kong on 17 June 2020.

Political analysis of British and international responses

Boris Johnson's stance on Hong Kong is considered firm. Hong Kong Free Press notes that Johnson was once an editor for The Spectator, a British politics magazine that "has for decades campaigned in favour of standing up for Hong Kong and making its citizens British".

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.

Japan, which signed a statement with the G7 condemning China in relation to imposition of the law on 17 June, is typically neutral to Chinese politics. Wintour suggested that Japan decided to add their voice to the international dissent because of "a growing Japanese perception of the technological threat to Japanese security posed by China". Shinzo Abe said that he wanted Japan to take the lead on the G7's statement, an announcement that drew criticism from China.

Legislation

Initial plans

...the full text of the law doesn't really matter: the national security law is not an end in itself but a means for China to bring Hong Kong to heel. The law means whatever Beijing wants it to mean...

Tom Cheshire, Sky News Asia correspondent

Chinese plans for the legislation included most prominently criminalising "separatism, subversion, terrorism and foreign interference", which many interpreted as a crackdown on civil liberties, government critics, and the independence movement. China also planned to implement an intelligence service in Hong Kong under the law, using the PRC's own Ministry of Public Security police force that previously had 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".

After gatherings marking the one-year anniversary of the extradition law protest movement on 8 June 2020, Zhang Xiaoming, the recently demoted deputy director of China's Hong Kong and Macau Affairs Office, said that the national security law would only give Hong Kong residents more freedom, saying: "They can be free from the fear of violence. They can ride the train and go shopping freely. They can speak the truth on the street without the fear of being beaten up. In particular, they no longer have to worry about young people being brainwashed."

Carrie Lam refused to rule out that the law could be applied retroactively. The Global Times, controlled by the People's Daily, suggested that past tweets from the pro-democracy Hong Kong businessman Jimmy Lai may be used as evidence to prosecute Lai under the law. Former Chief Executive CY Leung also suspected it may be used to ban Tiananmen Square vigils. On 10 June 2020, Hong Kong police began "establishing dedicated unit to enforce the new law", which had not been formally announced at that point; the next day, the British government revealed that an outline of the Chinese legislation "includes provision for the authorities in Hong Kong to report back to Beijing on progress in pursuing national security education of its people".

While Hong Kong's public universities publicly supported the law and said it will not affect academia and research, scientists in the territory feared that China's censorship of COVID-19 research publication would be extended to Hong Kong under the law. They also expressed concern that Hong Kong will likely be stripped of international funding within academia. A further worry within the field was the growth of self-censorship as a defensive response to fear of being punished for "publishing research that could upset the central government", citing unsuccessful trials as something that could harm market prospects, making scientists fear continuing to work at all. One dean, speaking to Nature in June 2020, insisted the law would not affect publishing, but did acknowledge that access to US data would become restricted.

On 15 June 2020, the 30th anniversary of the Basic Law being officially enacted, Beijing announced that the Chinese government reserves the right to deal with cases under the national security law, expecting the number to be low and in "very special circumstances", and that a mainland security office must be opened in Hong Kong as a demand of the government. The government refused to qualify what the exceptional circumstances may be, leading to fears that the law will be used to arrest critics of Beijing and then have them extradited to the mainland for prosecution. As well as the new mainland security office, Hong Kong must allow Chinese security agencies to operate in the region when needed, and accept that Chinese agencies "will supervise and guide the Hong Kong government". Controversy had already erupted the day before, after police arrested a teenage schoolgirl for protesting by using a knee to pin her neck to the ground, with another officer pinning her at the waist. This drew comparisons to the killing of George Floyd and prompted questions about the use of force on a non-violent minor.

The first concrete details of the legislation were announced on 15 June 2020, but by the time lawmakers in Beijing were approving final drafts on 29 June 2020, Carrie Lam had still not seen a draft of the law.

Provisions

The NPCSC passed the law unanimously on 30 June 2020, using a constitutional "backdoor" to bypass Hong Kong approval, according to multiple Western sources based on reports from regional media. According to these reports, the final law would criminalise secession of Hong Kong, subversion against the Chinese government, terrorism, and colluding with foreign forces. The law is broader than China's own criminal law.

Coming into effect at 2300 local time (1500 UTC) on 30 June, the law was noted by the BBC to have come into effect just before the 23rd anniversary of the 1 July 1997 handover, an event that annually draws large pro-democracy protests. Despite this, political leader Wu Chi-wai (of the Hong Kong Democratic Party) said that he will still attend a march on 1 July. Al Jazeera's Katrina Yu said "It's very symbolic that this law has been passed just a day before the anniversary of Hong Kong's handover from Britain back to mainland China", saying it was a power play by China. On 1 July, ten people were arrested for breaking the new law.

The law has six chapters and a total of 66 articles, published in the Hong Kong Government Gazette solely in Chinese. These cover the four crimes (secession, subversion, terrorism, collusion), which are all punishable with life in prison, Hong Kong's rare maximum sentence. The minimum sentence for these is set at 3 years. China announced that they will administer the law, and that it can also be used to prosecute people from other countries. Reviews of the content proved troubling to legal scholars and observers, as it is deemed to be "stronger than many feared, both in scope and penalties". While not carrying life sentences, peaceful protesters could see 10 years in prison if it is judged the protest movement has foreign links, and freedoms will be limited as all "foreign groups, organisations and media" will be subject to oversight from the Chinese government. Chinese intelligence agencies will be present in Hong Kong, and have powers that go above all Hong Kong laws, with Chinese agents in Hong Kong having immunity from criminal liability. Any decisions made by the new Chinese national security commission will also be immune from facing legal challenge. Still, Reuters positively noted that the law explains it cannot be retroactively applied to actions that occurred before it was implemented.

Other specific offences are laid out in the law, such as the damage of transport facilities being considered a terrorism offence. Article 29 of the law criminalises "inciting hatred of the central government and Hong Kong's regional government". Article 38 details how foreign nationals committing acts outside of Hong Kong and China are criminally liable under the law, and that such foreigners could be arrested upon arrival in Hong Kong. Anyone found guilty under the law will be barred from public office for life. In respect to China taking control and extraditing suspects, Al Jazeera reported that: "The full text of the law gave three scenarios when China might take over a prosecution: complicated foreign interference cases, 'very serious' cases and when national security faces 'serious and realistic threats'." The law further explains that the action does not need to be violent, and that the minimum sentence in such cases will be 10 years.

As part of the Chinese security presence in Hong Kong, the law provides for the establishment of the Office for Safeguarding National Security of the CPG in the HKSAR, a bureau exempt from Hong Kong jurisdiction that can, if the Central People's Government of the PRC chooses to grant it jurisdiction, prosecute cases under the Criminal Procedure Law of the People's Republic of China.

People prosecuted under the law will face different judges to the Hong Kong judiciary; BBC China correspondent Stephen McDonell wrote on 30 June that Hong Kong's judges are independent and can appropriately interpret the law, which the Chinese government will not accept, and so judges will be appointed for this matter by the Chief Executive directly. McDonell writes that this is "effectively installed by Beijing". This brought into question the role of Commonwealth of Nations, including many British, justices that hear cases in Hong Kong, though Chief Justice of Hong Kong Geoffrey Ma spoke up on 2 July to say that judges will be chosen by merit rather than political affiliation, and foreign judges will be permitted. Some cases in Hong Kong can be held without juries if it is deemed they contain state secrets. The law does not presume bail will be granted for those arrested under it, and there is no limit to how long these people may be held.

Responses to published legislation

On 1 July 2020, the day after implementation of the security law, tens of thousands of Hong Kong people gathered on the streets in Causeway Bay to march. On 2 July, the Hong Kong government declared the 'Liberate Hong Kong' slogan depicted on a banner here – "the most resonant slogan of its protest movement" – to be subversive and in violation of the law.

More countries and groups responded after the law was enacted on 30 June 2020. The UK, the President of the European Council, and NATO responded with statements that China was destroying the rule of law in Hong Kong, and the UK, Taiwan and Canada warned their citizens against visiting Hong Kong. Presidents Ursula von der Leyen of the European Commission and Charles Michel of the European Council announced that they would discuss within Europe whether to discredit China as a trading partner. Speaking in the UK House of Commons, Foreign Secretary Dominic Raab announced that the British National Overseas offer still stands, and saying that the UK may take further action if the full text of the law shows further breaches of the Joint Declaration. Germany also called for the postponed European Union-China summit to be rescheduled as soon as possible, while Japan spoke forcefully against China. France began more fervently reaching out to national leaders to create an international "anti-Chinese alliance".

Tom Cheshire, Sky News's Asia correspondent, wrote on 30 June 2020 that the law and its strength was evidence that the Chinese government does not care what the world thinks of its behaviour, that Xi Jinping could not wait until 2047 to take over Hong Kong, and that the timing suggests China felt the distraction of the COVID-19 pandemic on the rest of the world made it an easier moment to impose the law. The same view was expressed by the BBC's diplomatic correspondent on 2 July, who wrote that "the Covid-19 crisis gave Beijing the opportunity to bring the Hong Kong crisis to a head".

Both political parties in the US created bills to provide refugee status for Hong Kong residents, for those "at risk of persecution" because of the law, and a bill passed in the House of Representatives on 2 July to sanction US banks that deal with China. Titled the Hong Kong Autonomy Act, it will now pass to the US president. British journalist Simon Jenkins wrote an opinion piece on the law and its response, expressing pride at the democracy still shown in Hong Kong but also affirming that even these local democracy activists have long felt Hong Kong would end up a Chinese enclave. Jenkins suggested the law was damaging and inevitable, and the only appropriate response is to help the Hong Kongers who believe in democracy to leave.

Article 38

Concerns have been raised that Article 38 of the law exerts extraterritorial jurisdiction over all non-Chinese citizens, effectively criminalising any criticism of the CCP or Chinese government by anyone on the planet. Taiwanese outlets reported that the Chinese and Hong Kong courts said "there are 8 billion people who will have to read the national security law" so that they do not break it, and asserted that they have the legal right to enforce it on anyone. A US-based China correspondent, Bethany Allen-Ebrahimian, suggested that the inclusion of Article 38 was primarily targeting the Hong Kong diaspora and aiming to prevent dissident organisation within Hong Konger communities abroad.

This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.

— Hong Kong national security law Chapter III, Part 6, Article 38

External links

• Hong Kong Government Gazette promulgation of the law
• UK government six-monthly report on Hong Kong for July to December 2019 (published June 2020)
• BBC live feed on Hong Kong (1 July 2020)
• The Guardian live feed on Hong Kong (1 July 2020)
• Lord Chris Patten – China's Global Posture and its Evolution (1 July 2020) (VIDEO)