The Hong Kong National Security Law

Bihu Chamadia, Research Intern, ICS

The new Hong Kong National Security Law (香港国家安全法 ) has caused massive controversy in Hong Kong as well as in the international community. On 21st May the Chinese authorities introduced a proposal in National People’s Congress (NPC) to enact the National Security Law. Further, on 28th May, the 13th NPC (人民代表大会), voted in favour of the National Security Law (NSL) for Hong Kong.  The new law aims at tackling secession, subversion, terrorism and foreign interference, the details of which were kept under wraps until it was implemented on 30th June2020. A protest broke out in Hong Kong city on 1st July and several people were charged under the new NSL.

The NSL consists of a total of 66 Articles divided among six chapters. Some Articles are more important to look at, as they provide an overview of what awaits Hong Kong (香港) and anti-CPC Hong Kong citizens.

Article 12 of the Law states the establishment of a Committee for Safeguarding National Security, which will be under the supervision of and accountable to the Central People’s Government in Beijing. Although the committee will be headed by the Chief Executive, Article 15 states that the committee will also have a National Security Advisor, who will be designated by the Central People’s Government and shall be responsible for providing advice to the committee relating to its functions and duties. Article 14 states that the committee will work in secrecy and its decisions are  not reviewable by the court. While Article 5 states that all persons shall be considered innocent until declared guilty by the judicial organ, Article 42 contradicts it by stating that no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering the national security.  Article 38 states that the law would be even applied to offences committed against the Hong Kong Special Administrative Region (HKSAR) from outside the region by people who are not a permanent resident of HKSAR. Article 40 provides that the jurisdiction is in the hands of the Hong Kong authorities by default but it can be taken over by the mainland’s office for Safeguarding National Security. Further, Article 57 states that once in mainland, the processing and sentencing will be done according to the Chinese Criminal Law Procedure.

On the other hand, Article 60 provides complete impunity to the office and its personnel as they are not subjected to the jurisdiction of HKSAR while performing any act in the course of duty. The National Security Law has caused ripple effects not only in Hong Kong but in the international arena as well.

Hong Kong in Sino-US Relations

Sino-US relations have seen a massive downgrade since the Trump administration came into power in 2017. Human Rights and Trade have been a point of contestation between the US and China. Hong Kong has always acted as a geopolitical buffer state between China and the West especially for the U.S. Under the Hong Kong Policy Act of 1992, the U.S. had decided to maintain its favourable treatment, especially in the matter of trade, even after Hong Kong was reverted to Chinese sovereignty in 1997. The underlying condition for the preferential treatment was the autonomy of HKSAR. The Act also stated that “whenever the President determines that Hong Kong is not sufficiently autonomous to justify treatment under a particular law of the United States,” he is authorized to “suspend the favourable treatment.” In the wake of anti-extradition bill protests in 2019, the U.S. Senate and the House respectively passed the Hong Kong Human Rights and Democracy Act (HKHRDA) in November of the same year.

This indicated that the State Department would annually require to re-certify Hong Kong’s autonomous nature, in order to continue the so-called “special treatment” the U.S. affords to Hong Kong. It was a week after the National Security Law was tabled for voting before the NPC on 27th May, 2020 the U.S. Secretary of State Mike Pompeo refused to certify the autonomy of HKSAR.  On 28th May, the NPC passed the Hong Kong National Security Law. On 29th June, the U.S. Department of State ended exports of U.S.-origin defence equipments to Hong Kong. It also mentioned that U.S. will take steps to impose the same restrictions on U.S. defence and dual-use technologies to Hong Kong as it does for China. Mike Pompeo in his Tweet mentioned about the waning of ‘One Country, Two Systems’ (一国两制) and replacement of it with ‘One Country, One System’. As the Sino-US relations have already been in a tailspin due to the ongoing trade war and the COVID-19 impact, the recent issues have further exacerbated tensions in an already fragile relationship.

Sino-British Relations

Hong Kong has been a major component of the Sino-British relations. The recent move by the Chinese government has led to deterioration in the relations between two countries. Hong Kong was handed back to Chinese sovereignty in 1997 under the Sino-British Joint Declaration, 1984. Since then Hong Kong has been ruled under the framework of ‘One Country, Two Systems’, which is to continue until 2047. Under this system Hong Kong maintains a mini-constitution and enjoys autonomy on matters other than defence and foreign relations. On the National Security Law, the UK criticized China for breaching the ‘One Country, Two systems’ formula. On 11th June 2020, while presenting the 46th report to Parliament on Hong Kong, the British Foreign Secretary mentioned that China must respect Hong Kong’s autonomy and its own international obligations. Britain also mentioned that the Joint Declaration is registered with United Nations (UN). Thus, indicating its international obligations. On the other hand, China has mentioned that the Sino-UK Joint Declaration is unilateral policy announcement by China and not an international commitment.

On 1st July, Britain introduced a new route for those with British National (Overseas) (BNO) status to move to UK. BNO status holders refer to Hong Kong citizens born before 1997. The recent announcement by the British Prime Minister Boris Johnson in the House of Commons, extended the Right of Abode (ROA) to dependents of BNO passport holders, giving way for millions of Hong Kong citizens to acquire British citizenship. China’s Foreign Ministry criticized Britain’s decision and mentioned that the offering of ROA to BNO status holders is a breach of the terms of a memorandum offered by the UK to China in 1997.

China-Hong Kong Relations

Hong Kong maintains a democratic-capitalist system under the shadow of Communist China. It also enjoys certain level of autonomy on various matters and is governed by Hong Kong Basic Law. Article 23 of the law states that the HKSAR “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.”

Before the British handover of Hong Kong to China in 1997, China’s crackdown on the student-led democracy movement in 1989 created anxiety in Hong Kong regarding the handover and led to the political awakening of the population. In 1992, Chris Patten was appointed as the last colonial governor of Hong Kong. Patten initiated a series of political reforms designed to give the people of Hong Kong a greater voice in government via democratic elections to the Legislative Council (LEGCO).

When Hong Kong’s Democratic Party, led by barrister Martin Lee, routed pro-Beijing candidates in the 1995 LEGCO elections, Beijing denounced Patten and began a series of strong measures aimed at re-establishing its influence. On 24th March, 1996 China’s 150-member Preparatory Committee, which had been created to oversee the handover, voted to dissolve LEGCO and installed a provisional legislature after Hong Kong returned to Chinese sovereignty. In December 1996 a China-backed special election committee selected the 60 members of the provisional body, just days after it had overwhelmingly elected 59-year-old Tung Chee-hwa as the first Chief Executive of the HKSAR. Tung soon signalled his intention to roll back Patten’s reforms, announcing in April 1997 proposals to restrict political groups and public protests after the handover. After the handover, however, the situation in Hong Kong remained stable but complete freedom in the exercising political and civil rights remained doubtful.

In September 2002, Hong Kong government released a proposal to implement Article 23 of the Basic Law. In February 2003, the National Security (Legislative Provisions) Bill was introduced in the Legislative Council. This caused a massive upheaval in the city and the bill was finally withdrawn by the government following a huge protest by the citizens of Hong Kong on 1st July, 2003. The city has witnessed many protests since the British handing over of Hong Kong to China. Each protest has culminated into a “pro-democracy” protest. In 2012, Protests broke out in Hong Kong as the authorities tried to change the curriculum of the school system in Hong Kong. The 2014 Umbrella Movement was a movement against the decision of China’s National People’s Congress Standing Committee (NPCSC) regarding the ‘proposed reforms of the Hong Kong electoral system.’ The reforms suggested a pre-screening of the candidates by the CPC for the post of Chief Executive of Hong Kong.  The 2016 protestwas the first pro-independence protest held in Hong Kong as it demanded complete independence of Hong Kong from Mainland China. In 2017, as Hong Kong celebrated two decades of handing over of Hong Kong to the Chinese control, the pro- Democracy protesters marched against China’s refusal to grant ‘genuine autonomy’ to Hong Kong and the erosion of ‘one country, two systems.’ In 2019, the city, during the Anti-Extradition Bill movement, witnessed the most violent protests since its handover, as police used brutal force to supress it. It garnered the attention of the world and led to massive criticism of China on the international stage.

The Bill was eventually shelved indefinitely, causing major embarrassment for the CPC. Hong Kong was the last remains of the humiliation faced by China at the hands of a foreign power. Even when return to Chinese rule, in terms of politics, society and culture, there has been vast discrepancies between Hong Kong and Mainland. China, time and again has tried to interfere in the city’s day-to-day affairs in order to create more semblance between Hong Kong and Mainland. On the economic front, although, Hong Kong is just 2.7% of China’s but it remains a most favoured destination for FDI due to its financial and legal system. While international companies use Hong Kong as a launching pad to expand into mainland China. The bulk of foreign direct investment (FDI) in China continues to be channelled through the city. Although, recently Shenzhen surpassed Hong Kong in terms of GDP, Hong Kong still provided systems and frameworks which cannot be provided by Mainland Shanghai or Shenzhen. Most of China’s biggest firms, from state-owned Industrial and Commercial Bank of China (1398.HK), to private firms like Tencent Holdings (0700.HK), have listed in Hong Kong, often as a springboard to global expansion. Last year, Chinese companies raised $64.2 billion globally – almost a third of the worldwide total – via initial public offerings (IPOs), but just $19.7 billion of that came from listings in Shanghai or Shenzhen. Hong Kong has also been pivotal to China’s longer-term ambition to turn the RMB (Yuan 元) into a widely-used international currency, competing with the U.S. dollar.

Conclusion

The citizens of Hong Kong have often voiced their concern over the ‘Mainlandization’ of the city and the waning of ‘One Country, Two Systems”. The passing of the National Security Law has caused a great amount of anxiety among the citizens and was termed as a “Death Knell” for democracy in Hong Kong. Every year, 1st July commemorates the anniversary of the British handing over of Hong Kong to China and the citizens take out an annual march on this day. On 1st July, 2020 the day which commemorated the 23rd anniversary of British handing over of Hong Kong, the citizens marched into the streets while National Security Law was already put in place. The day witnessed the actual implementation of the Law when the protestors were arrested under the new Law on charges of “inciting sedition and terrorism”.

While China received massive criticism over subversion of freedom and rights of citizen of Hong Kong from various countries including the U.S. and UK, HKSAR Chief Executive Carrie Lam stated that “the National Security Legislation will help restore stability in Hong Kong, and protect the life and property, basic rights and freedoms of the overwhelming majority of residents” and will not cause any harm to freedom possessed by the citizens of Hong Kong. China lashed out at the U.S. and UK, stating that while these powers have a National Security Law in place, they are against China for doing something similar. China’s current domestic politics including rising nationalistic sentiments, of which territory occupies a great portion and Xi Jinping’s aggressive foreign and domestic policies have a major effect on the implementation of the law. Besides, the 2019 protests and fading CCP’s patience to deal with Hong Kong together has also played a great role in panning out of the new Law. The Chief Executive elections which was due in September was very crucial to the Law. The Hong Kong government on 31st Aug 2020 announced the postponement of elections by 1 year. While the reason cited by the government was the pandemic, the pro-democracy opposition remarked that this was an attempt to prevent their winning which, according to them, is inevitable in the face of massive dissatisfaction among the Hong Kong citizens. 

Finally, the Law has also affected China’s relation’s with other countries, including the U.S and UK. While Sino-US relations have already been on a crossroad due to trade war and the outbreak of COVID-19, the implementation of National Security Law by China and retaliation by the State Department of the U.S., further deteriorated the relations. U.S. has massive investment in Hong Kong which includes over 1,300 companies and $82.5 million dollars as direct investment and the new Law have put into risk U.S. business interest as it will no longer be protected under British-style common law jurisdiction. Moreover, as American elections remain due in November 2020, Trump has hardened its stand on China. On the other hand, the Sino-British relations have been in its ‘golden era’ post- ‘Brexit’. As Hong Kong constitutes an important part of Sino-British relationship, the National Security Law, means much more for the UK than what it stands for the U.S. Thus, UK’s has been the most direct international response against the implementation of the law.

As it were, other countries’ reactions make it easy for China to blame foreign interference and play the nationalist card to go through with the plan of completely integrating territories under the roof of ‘One China’.

Beijing’s SCS Dilemma: Nan zhongguohai or “Nanhai”

Hemant Adlakha, Honorary Fellow, ICS and Associate Professor, JNU

Speaking of foreign affairs, in the early days of reform and opening door policy, Deng Xiaoping once said, China must continue to ensure good relations with the US. All other outstanding issues, including Taiwan and the dispute with Japan and ASEAN nations about the Diaoyu Island and South China Sea, Deng was confident that future Chinese leaders “with cleverer minds” would be capable of settling.

Daily Express Photo

 

Recently, the South China Sea has become a flashpoint again. Why? To people who refuse to be labeled as pro-China or pro-US (though there really aren’t many such people around), the reason for waters heating up in the 3.5 million km2 sea is the showdown of strength between China, a continental rising power and the US, the world’s only dominant maritime power ruling the oceans for over a century now. While the mainstream media (MSM) – also the dominant view in the region, blames growing Chinese muscularity in the SCS, the non-MSM perspectives in the region and beyond, attribute further intensifying of the many-fronted aggression against China by the American Empire, especially during the ongoing Covid19 pandemic period, as the main source of the SCS again becoming a potential flashpoint.

As the battle of perceptions weighs heavily against the People’s Republic of China, it is intriguingly puzzling why three important aspects – crucial in the understanding of the prevailing venomous atmosphere in the SCS – remain hidden in the mainstream discourse. They are, namely: Asian nations since at least WWII have territorial disputes in the SCS but long kept them manageable, until America began targeting China as a primary foe and implemented its “Pivot to Asia” policy to contain China in 2011; the current, incendiary sovereignty battle in SCS is the result of four centuries of Western – American and European – colonialism which began with Spain and Portugal dividing the Philippines and Indonesia in 1529 and ended with the US and UK drawing borders separating the Philippines and Malaysia in 1930; finally and more importantly, the US maritime hegemony – an unchallenged Anglo-American sea power for over 200-years ensuring that 90 percent of global trade continues to use oceanic routes – cannot allow any country, especially a continental power like China, to change the international political order designed by the maritime world. 

The Brazilian journalist Pepe Escobar, a regular columnist for Asia Times Online and Sputnik News, has been following developments in the SCS since Hilary Clinton started navigating the US return to “Asian waters” as the 67th US Secretary of State under the Obama Administrationin 2009. In July 2016, when the Permanent Court of Arbitration (PCA) at The Hague decreed in favor of the Philippines and rejected China’s claim of “nine dash line” regarding the disputed Spratlys, Escobar wrote “the SCS is and will continue to be the ultimate geopolitical flashpoint of the young 21st century.” Needless to point out, Escobar’s pronouncement had much to do with China’s instant, disdainful dismissal of The Hague judgment as “null and void.” But in fact, Escobar was reminding us of the future retaliation by the US against the Chinese “saber- rattling.”

Another pertinent argument which generally is missing from the mainstream discourse is that stakes are very high in tension-ridden SCS not only for the future of Asia, but also for the East-West balance of power, as compared with the Middle East or even in Eurasian borderlands. To understand this, one must read Alfred Mahan’s seminal The Influence of Sea Power Upon History, 1660-1783, written over a century and quarter ago. Mahan essentially wrote the roadmap of US ascendancy to become the world’s most powerful maritime power, and therefore the dominant power. His core thesis is, the US should go global in search of new markets, and protect these new trade routes through a network of naval bases. “That is the embryo of the US Empire of Bases – which de facto started after the Spanish-American war, over a century ago, when the US graduated to Pacific power status by annexing the Philippines, Hawaii and Guam,” Mahan had envisioned.

Echoing the above, a recent article in Wn.com/Defensepost on the ongoing eyeball-to-eyeball contestation between the armies of China and India along the Line of Actual Control in India’s eastern Ladakh, draws interesting connection between escalating tensions simultaneously in the SCS and on China’s western border with India, respectively. According to the article’s two authors, current India-China border skirmishes should not be viewed in isolation from Anglo-American geopolitical plans to halt the Chinese from reaching the Arabian Sea through a much shorter route via Pakistan. “US maritime power is asserting its reach and range to let its allies know that the ‘maximum pressure’ game on China is underway. Offensive realism, consisting of assertive containment and deterrence, is America’s new theoretical and military mantra against China,” it said.

When speaking of allies, a former Indian ambassador believes the ASEAN countries – almost all former or current allies of the US, may appear to be bandwagoning with China. In an op ed piece in The Hindu a couple of weeks ago, Ambassador Jayant Prasad opined: “But in spite of their deepening economic ties with China, they (ASEAN countries) are seeking political insurance, strengthening their navies, and deepening their military relationships with the United States.” On the other hand, while sympathizing with Beijing’s “self-defensive” actions, Thomas Hon Wing Polin, Hong Kong-based veteran journalist recently observed, “The SCS is home to the world’s busiest and most important trade lifelines. Some 80% of China’s overall trade including vital oil imports, all pass through its waters. Keeping SCS shipping lanes open is a core interest of China – simply because it is matter of national survival.” Polin also cautioned that the ASEAN nations are fully aware the island disputes is not with China alone, but also between and among several ASEAN members. To the huge discomfiture of the US, not only China knows this, China has been successful in rallying most ASEAN countries round two initiatives Beijing can take credit for: to settle disputes bilaterally and to have a Code of Conduct between China and the ASEAN.

Emerging from the just concluded virtual meeting of the ASEAN+3 Senior Officials Meet (APT SOM) last Monday, the Chinese Vice Foreign Minister Mr. Luo Zhaohui exuded confidence in the solid economic and trade ties between China and ASEAN. In the backdrop of the ongoing pandemic and in the face of escalating tensions in the SCS, the value of China’s exports and imports to ASEAN increased by 5.6 percent in the first half of this year, he said. Luo displayed the same confidence in East Asia to lead the world to recover economy. A statement released by the Foreign Ministry of the P R China (FMPRC) next day claimed: “As epidemic prevention and control becomes a new normal, regional cooperation East Asia has been reinforced. All parties are looking forward to signing the Regional Comprehensive Economic Partnership (RCEP) within this year. East Asia economic integration has bright prospects.”

Now, let us turn to China to see how scholars and experts have been evaluating both the heightened presence of the US marine power in the SCS, especially since early June; and whether the PLA Navy (PLAN) is actually planning to take on the US might, which is literally knocking at China’s doors. The overall consensus in Beijing regarding the presence of USS Ronald Reagan and USS Nimitz in SCS seems to dismiss any real or potential threat of war associated with the US move. Song Zhongping, a well-known military affairs commentator said in a recent interview with the Global Times, “The US move aimed at enhancing its military presence in the West Pacific, is designed to show off that its hegemony in the region is unshakable.” The US is also attempting to deter PLA movements in the SCS and on the Taiwan question, Song said.

Perhaps encouraged by Deng’s confidence in the ability of future Chinese “cleverer” leaders, or an indication that Beijing is moving towards a more hardened stance – in line with its so-called “aggressive” external posturing during the pandemic period, a recent article in the Party-run online current affairs news platform Utopia is worth paying attention. On the one hand, the article disdainfully calls for “reset” in Beijing’s long-held position of defining the SCS as “peaceful sea”; and on the other it makes an appeal to China’s policy makers to have “no more serious engaging with countries in the region with which China has territorial disputes.” Both propositions sound too extreme to seem tenable. Yet the fact that a major “official” media outlet has carried the signed article is enough to raise eyebrows among China watchers and security analysts alike, especially in the Philippines and Indonesia, or even in Malaysia, and raise the question, what is China up to?

Well, many would agree with the title of the op ed piece by the former Indian ambassador: “More saber-rattling, more isolation.”  However, the moot question still remains, the SCS for   Beijing will continue to be China’s South Sea or become “trouble sea” (nanhai). For nan in Mandarin means both “south” and “trouble.”