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Sunday, May 31, 2020
Protest or dangerous subversion: what China’s proposed national security laws mean for Hong Kong
National
security laws set to be made for Hong Kong have been called a "death
knell" and "badly damaging". Why are they so controversial?
Beijing’s
announcement that it intends to draft national security laws on Hong
Kong has riled Hong Kong's protesters, been condemned by several nations
and raised several questions about the rights of the territory's
citizens. The laws have not yet been written, but the prospect of
pushback against curtailed freedoms has prompted the city's police force
to lock down several of the city's streets, as authorities brace for a
wave of protests after a break from unrest during the harbour city's
pandemic lockdown.
So
what are these new laws? Why are they so controversial? And what do
they mean for the one country, two systems arrangement that governs Hong
Kong?
A pro-democracy supporter is detained by police during an anti-government rally on May 24 in Hong Kong.Credit:Getty Images
What are the new laws?
A
decision from the ruling Communist Party in Beijing has authorised
Chinese legislators to draft a national security law for Hong Kong. National
security risks in the former British colony had become a "prominent
problem", Wang Chen, vice-chairman of the Standing Committee of the
National People's Congress, said in a report from Xinhua news agency on May 22.
"Law-based and forceful measures must be taken to prevent, stop and
punish such activities." The proposed law will cover four main matters:
subversion, secession, terrorism and foreign interference.
Subversion,
in a dictionary, is the undermining of the power of an authority.
Secession is when you seek to break away from a political state.
Terrorism means using violence or intimidation, especially against
civilians, to achieve a political aim. And foreign interference,
basically defined, is when foreign powers attempt to influence what is
going on in another country, often by sneaky means. Most countries
have laws on these matters, although definitions of these crimes vary
considerably. The Chinese government's definition is a key concern right
now.
It
is also possible, but not a given, that these laws may give China's
Ministry of Public Security, which is China's main police and security
agency, the right to set up offices in Hong Kong.
Update: China goes ahead, US and UK react
China's
National People's Congress has approved the decision to make the new
national security laws for Hong Kong. China's Ministry of Public
Security said it would use "all efforts to guide and support the Hong
Kong police to stop violence and restore order". UK Foreign
Secretary Dominic Raab said his government would open a path to
citizenship for 300,000 Hong Kong residents with British National
(Overseas) passports if Beijing did not back down. These passport
holders have the right to come to the UK for six months, a limit that
would be replaced with extendible periods of 12 months.
US
President Donald Trump said the administration would begin eliminating
the "full range" of agreements that had given Hong Kong a relationship
with the US that mainland China lacked, including exemptions from
controls on certain exports.
Hong Kong's government said Trump's
move was "unjustified" and China was within its "legitimate rights" to
pursue the new national security laws. Some pro-democracy
supporters welcomed the move, details of which have not been made
public, but others fear Hong Kong has become collateral damage in a
rivalry between two superpowers. "This looks like a new Cold War, and
Hong Kong is being made a new Berlin," said Claudia Mo, a lawmaker in
the city's pro-democracy camp. "We are caught right in the middle of
it." – Bloomberg, New York Times
Hang on, doesn’t Hong Kong make its own laws?
Well,
yes, it’s a fundamental part of the “one country, two systems”
arrangement between Hong Kong and mainland China. Hong Kong has its own
legislature, in a smartly designed building down by its central harbour.
It has been a focus for angry protests in recent times, with one pro-democracy lawmaker in May calling a pro-Beijing counterpart "a vicious Beijing little worm". “So,
99.9 per cent of the laws in Hong Kong consist of laws made by the Hong
Kong legislature,” says Albert Chen, Professor in Constitutional Law at
the University of Hong Kong, “but then, under Article 18 of the Basic
Law, the Chinese legislature … can also make a law and apply it to Hong
Kong”.
The
Basic Law, Hong Kong’s mini-constitution, says mainland China can make
laws for it on defence and foreign affairs as well as “other matters
outside the limits of the autonomy of [Hong Kong]”.
So
far, this handful of laws includes the stationing of a Chinese garrison
in Hong Kong (by law, these troops must not interfere in local
affairs), the criteria for being considered a Chinese national and the
national flag law, which prohibits flag desecration.
The
newly proposed national security laws would seem to fall under the
third, rather nebulous, category of being outside the limits of Hong
Kong’s autonomy.
“I cannot say it's a total surprise,” says Hong
Kong Basic Law expert Danny Gitting. “I didn’t expect this but it’s not
inconsistent with the way that the Basic Law and Hong Kong’s power has
been interpreted over the past few years.” He says one turning point was
a Chinese government white paper in 2014 that said China had
“comprehensive jurisdiction” over Hong Kong. “We’d never heard that
before,” he says. “In some senses, although we didn’t expect it, this is
a logical progression of that.” Once the proposal to make the new
law is approved, in principle, by the nearly 3000-member National
People’s Congress (NPC) in Beijing, the new law will be written in the
coming weeks or months by a standing committee of around 200 members and
then shared with a smaller committee that offers advice. Professor
Chen is a member of this advice committee. “The committee only has to
be consulted shortly before the law is put into Annexe III [which
enables the law to apply to Hong Kong],” he says. “As far as I know, the
law has not yet been drafted.
“The
NPC decision says, when this national security law on Hong Kong is
made, it will be directly promulgated. So it doesn't need to be
implemented by the Hong Kong legislature.”
Police check pedestrians gathered in the Central district of Hong Kong on May 27. Credit:Getty Images
Why the controversy?
The
new laws represent the most significant development in Hong Kong since
one country, two systems came into play in 1997, says Ryan Manuel,
managing director of research firm Official China. China is “using the
law to get an outcome that's not in the spirit of the Basic Law,” he
says. “The most worrying consequences would be that legislative bodies
within Hong Kong will not be considered sovereign and able to draft
laws.”
The
United States is reportedly mulling moves against China as Secretary of
State Mike Pompeo called the proposed new laws a "death knell" for the
high degree of autonomy that Beijing promised to Hong Kong in the
lead-up to '97. Australia, Canada and the United Kingdom have jointly
criticised the law too, saying it would "clearly undermine" Hong Kong's
autonomy and its citizens' civil liberties.
Hong Kong's Bar
Association has concluded that China's NPC Standing Committee does not
have the power to add the national security law under Annex III of the
Basic Law via Article 18 and has called the draft laws "worrying and
problematic". The issue is not just that Beijing is running the
show but that the contents of the law may not be compatible with freedom
of speech and the right to protest, which are enshrined in Article 27
of the Basic Law.
“This is almost a Tiananmen Square situation,”
says Michael Shoebridge, an expert on national security with the
Australian Strategic Policy Institute. “The rights and freedoms of a
whole lot of citizens of Hong Kong are being very badly damaged. And a
number of people in Hong Kong could end up in rather nasty Chinese jails
for long periods of time for doing things that the Basic Law of Hong
Kong currently guarantees they can do until 2047.” The term
"rioting" has proved a major sticking point after several hundred
protesters were charged with the offence, which carries a 10-year jail
term.
“Both
subversion and terrorism have been very broadly characterised within
mainland China,” says Shoebridge. “Subversion is anything that
undermines the power or authority of the central government – and being
critical of the central government is enough to meet that woolly
definition. The public protests on the streets of Hong Kong have been
already characterised by Chinese officials as terrorism last year – and
the Uighurs, for example, are characterised as terrorists even though
most of the millions of them in camps have committed no crime.”
Professor
Chen says we don’t know what “foreign interference” will mean in the
new law but there is speculation it will relate to funding local
activists. He says it is too early to condemn the contents of a bill
that hasn’t been written but if it does take a very broad definition of
subversion, “then people would be worried”. Hong Kong’s Chief Executive Carrie Lam says "rights and freedoms are not absolute". "If
a minority of people – indeed, a very small minority of people – are
going to breach the law to organise and participate in terrorist
activities to subvert the state power then, of course, they have to be
bounded by the needed legislation."
The handover ceremony at the Hong Kong Convention Centre on July 1, 1997. Credit:AP
Who makes the laws and why is the process so complicated?
Hong
Kong’s complicated relationship with China has a long history. China
ceded Hong Kong to Britain in 1842 after a humiliating defeat in the
first Opium War but, by the final decades of the last century,
colonialism was on the way out. In 1984, Britain and China agreed to
find an answer to “the question of Hong Kong”. They declared that China
would resume sovereignty over Hong Kong in 1997, from which time Hong
Kong would be vested with executive, legislative and independent
judicial power, “including that of final adjudication”, for 50 years. “The
current social and economic systems in Hong Kong will remain unchanged,
and so will the lifestyle,” the declaration reads. “Rights and
freedoms, including those of the person, of speech, of the press, of
assembly, of association, of travel … will be ensured by law in [Hong
Kong].”
After
the handover in 1997, a chief executive headed Hong Kong instead of a
British governor and Hong Kong became a “special administrative region
of China” with a one country, two systems arrangement enshrined in the
Basic Law. But the system, with its promotion of liberal democratic
values, has put Hong Kong on a collision course with Beijing – and this
accelerated last year with protests over a proposed extradition law.
Protesters form a front line during a stand-off with police in December 2019. Credit:Getty
Why is this law being introduced now?
There
are two factors, says Professor Chen. One is that Hong Kong has not
passed its own national security laws, although it is required to under
Article 23 of its Basic Law. Hong Kong leaders shelved plans for new
laws in 2003 after people took the streets in protest. “Whenever anybody
talks about Article 23 then there will be a lot of fear and anxiety,”
says Chen. “So the government was reluctant to do anything to implement
Article 23.” The other is the past year of protests. “The Chinese
government was content not to press this matter for a long time,” says
Chen, “… until this anti-extradition movement and riots last year. So
the Chinese government considers that now there are these threats to
national security in Hong Kong, and Hong Kong doesn’t have any law to
deal with the matter. “I believe that if there were no proposed
extradition law and there were no riots, no such acts of violence – or
some people would say it’s close to terrorism – if there were no such
things happening last year, I don’t think that this national security
law would be put on the agenda.” ASPI’s Shoebridge sees things differently. “There
wouldn’t be protests if Beijing wasn’t trying to undercut the freedom
and legal system in Hong Kong," he says. "That’s what the extradition
treaty was about. And now this [law] is tripling down – not doubling
down – on that behaviour that has created the protests that Beijing says
are the problem.” He believes there is a third factor behind the
timing. “This is an indicator of the anxiety that the Chinese government
has around social stability and support. Hong Kong is a radioactive
demonstration that Chinese people can have freedom of speech, assembly,
protest and be equal before the law – and be very successful. “I
think the big shift is that Xi Jinping has now said, ‘No, those freedoms
are dangers, as examples for a mainland population, and I will not
offer them to Hong Kong and I do not want them maintained in Hong
Kong’.”
Hong Kong chief executive Carrie Lam meets with Chinese President Xi Jinping in December 2019.Credit:AP
What will happen next?
There
is no mechanism to stop these laws being introduced, says Manuel. He
says the new laws will require Hong Kong's judiciary to interpret them
on a case-by-case basis. Hong Kong’s courts have a good track
record on protecting human rights, says Gitting, “and it’s not going to
be easy for them to suddenly sweep all that away. China could word what
it is doing [in a way that] will make it easier for the courts to avoid
difficult decisions than just saying: What China has said prevails.” As
the laws were set to be approved by the National People's Congress on
May 27, media reports surfaced that the wording might be expanded to
cover both “activities” as well as “acts” which, Gitting says, could
indicate the Chinese government was seeking to catch organisations as
well as individuals. “The point I’d draw from that is that this is being
written in something of a rush, by people who are not necessarily
terribly well-versed with the details of Hong Kong’s legal system and it
would not be a surprise … if when we see the wording there are various
problems with it and that will only increase the difficulty for the
courts.”
The
"big dividing line" to watch out for, says Gitting, will be any wording
that criminalises peaceful actions. “We think it probably will, at
least for Hong Kong independence.” A “small but significant”
number of Hongkongers want independence from China, he says (as opposed
to a continuation of semi-autonomy or self-determination). “Again, there
are numerous court cases that are very, very reluctant to uphold any
significant restrictions on rights where you are talking about the
peaceful exercise of those rights.” Shoebridge says other
countries' reactions to the new laws are still in flux. Countries could
band together to offer “pathways for refugee status or citizenship” for
Hongkongers fleeing because of these laws, he says, and they could
consider enacting Magnitsky-style laws that let them sanction individual
lawmakers and officials who enact and give effect to the new laws in
Hong Kong. (The United States already has such laws, which were expanded
from being Russia-focused to global in 2016; a parliamentary inquiry in Australia has been considering them since December.) Meanwhile,
as police surrounded the Legislative Council building on May 27, the
lawmakers inside held a hearing into yet another new law – one that
would criminalise disrespect towards China's national anthem, March of the Volunteers.
(Hong Kong soccer fans have been known to boo the song when it is
played at matches.) Before the day was out, police had arrested more
than 350 people, most on suspicion of unauthorised assembly. “Certainly,
some people are worried”, says Gitting. “By all accounts, there are
increasing applications about immigration overseas. But we cannot say
that people in Hong Kong are paralysed with fear. While it has become
more difficult to hold lawful street protests than in the past, we
cannot say that, in other respects, everyday life in Hong Kong has been
fundamentally affected as yet.” – with wires
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