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Introducing China’s New National Security Law and What it Might Hold for Hong Kong

Part one of a two part consideration of this year´s most controversial piece of legislation: A Chinese author´s take on "One country, two systems": Hong Kong´s new security law and media partisanship.

By Gogo Wen

© Badiucao.

“Every nation on Earth, unless a failed state, has laws protecting national security.”

— Henry Litton (retired Court of Final Appeal judge in Hong Kong)

In many recent articles, China’s new national security law for Hong Kong has been described as “extraordinary”, “controversial”, “worrying” and even “draconian”. Regardless of the accuracy of these statements, and whether they should be reassessed, the author believes it is worthwhile taking a different perspective. This article hopes to give the readers a more balanced and objective presentation on this subject.

Hong Kong National Security Law, why now?

This National Security Law was one of the most important and carefully crafted products of the most recent session of the Chinese Congress (the third Session of the thirteenth National People’s Congress (NPC) of the People’s Republic of China).

A common misconception is that this law is a response to the riots in Hong Kong triggered by the extradition bill controversy. In reality, enactment of a national security in law has been on the agenda for years. The extradition bill episode is merely the last straw pushing the central government to make the final decision.

Despite a provision in the Hong Kong Basic Law providing for and requiring the enactment of a national security law, political dissents within the region have suppressed virtually all measures attempting to bring this law on the table. Why then did the central government decide to push for this law to pass this time round? An examination of the contents of the law and legislative purpose could provide a few first-hand insights.

Two themes emerge in the discussion of the HKSAR National Security Law. One being the series of events and activities which have been unfolding in HKSAR posing threats to national sovereignty, as well as foreign and external forces which might use Hong Kong as a base to endanger China’s national security. The other being the lack of law-making pursuant to Article 23 of the Basic Law (Hong Kong’s constitutional document), a national security provision, since the transfer of sovereignty of Hong Kong. The amplifying tension in Hong Kong has also been attributed to the lack of legislative measures taken under Article 23.

The articles contained in the provision are closely tied to five core guiding principles identified at the third session. Upholding and protecting national security is at the heart of this new law, and the central government has taken a very firm stance as shown in its rhetoric, referring to national sovereignty, centrality and security as the “bottom-line”. Chinese President Xi Jinping has stated two years ago on the 20th anniversary of Hong Kong’s return that, any attempt to threaten national sovereignty is “absolutely impermissible”. Placing national security as the first basic principle also demonstrates its importance in the legislative agenda.

The second principle refers to maintaining and improving “one country, two systems”. The interpretation suggested here emphasises the role of “one country” and that “one country” is the precondition and basis of “two systems”. At the same time, the second principle also re-emphasis commitment to “the people of Hong Kong governing Hong Kong” and “high degree of autonomy” of the HKSAR. The following will address the role of “one country, two systems” in more detail.

The third principle refers to governing Hong Kong according to the rule of law and due process. Before taunting this principle as an empty façade, a closer read of the drafting shows more complexity behind this principle. The relevant provision repeatedly references “constitutional basis” for governing and legislating on the national security law issue and highlights the need to build an enhanced legal basis to which the government can refer to in the governing of HKSAR. Provisions in the Constitution authorises the NPC to enact laws prescribing “systems to be instituted in special administrative regions [including HKSAR]” and states the relevant sources of power. The relevant constitutional provision has been in place long before introducing of this national security law was even considered.

The fourth is to oppose external interferences with the affairs of HKSAR and Chinese internal affairs, which is closely tied with the NPC’s understanding and approach to national security. Infiltrations by foreign forces and external influences are seen as a challenge and threat to national security, and the strong position the NPC has taken on this matter echoes with its commitment in protection national sovereignty and security.

The last principle states that China seeks to protect legitimate rights and interests of HKSAR residents and believes that protection of national security is fundamentally the same as protecting these rights. This statement seems to pre-empt future challenges that national security measures taken adversely effects legitimate rights of HKSAR residents. Further, this principle elaborates that this law is targeted at a small number of illegal actions and at the same time offers protection to the life and property of the vast majority of HKSAR residents. These statements serve to show the legitimacy of the HKSAR National Security Law and aligns the aims of this law with the rights and interests of HKSAR citizens. A repeated reference to governing according to the rule of law and lawful procedures in this principle again demonstrates NPC’s emphasis on the centrality of law-making in strengthening national security.

Analysis of the Decision and Suggested Implications

The introduction of the HKSAR National Security Law has immediately drawn international attention following extended media coverage of events unfolding in Hong Kong in the past year. As the enactment and implementation of this law proceeds, we have seen its extensive effects on law enforcement, the judiciary, as well as in education. Indeed it may be somewhat early to draw conclusions on the actual effects of this law. Nonetheless, some macro observations can be made.

Taking a two-sided view, the main debate behind the HKSAR National Security Law is this: on the one hand, China is concerned with the security risks of the state which may “foment and find operation space in Hong Kong”, and some in Hong Kong hold doubts against security-related laws, and are concerned that their civil liberties could be undermined. While both are reasonable concerns, they are difficult to reconcile in reality and the difficulty is exacerbated by the existing complex and intricate political and socio-economic problems, as well as the inherent difficulties in the ‘one country, two systems” design.

The most prominent contradiction lies in ideology, with calls for a full Western-style democracy in Hong Kong on one side, and China’s Leninist roots and nation-state structure on the other. It is within this difficult backdrop where the “one country, two system” framework seeks to function. Moreover, the ticking clock of 50 years on the promise to institutionalise ideological differences between Hong Kong and China as set out in the Sino-British Joint Declaration also looms over the head of those concerned about maintaining Hong Kong’s distinct institutional tradition. This 50-year timeline perhaps acts as an additional catalyst on those seeking to transform Hong Kong before the expiry date.

Opposition to the HKSAR National Security Law from the pro-Western democracy camp mainly expresses concerns the continued potency of “one country, two systems” and whether the human rights and legitimate interests of HKSAR residents can still be protected. To this, in the press conference held on 22 May 2020, Chinese Prime Minister Li Keqiang stated that the introduction of this law is not a signal forsaking of the “one country, two systems” principle, but rather, its purpose is to uphold this principle. Nonetheless, some remain concerned and asserts that China tends to use the law to achieve political ends and to erode liberal foundations. Past experiences in Hong Kong have shown, the result of such opposition tends to lead to abeyance of attempts to enact national security legislations.

Others have pointed out the wider international contexts between enacting security-related legislation then and now. For instance, the world when the National Security (Legislative Provisions) Bill was introduced in the HKSAR Legislative Council in 2003 is very different from the world in 2020, with the nascent cold war between the US and China. From the security-based point of view, enacting laws protecting national security is only natural. The almost dysfunctional legislature in Hong Kong and disruptions to the basic normal operation of the city has also made enactment of the HKSAR National Security Law imminently crucial. As was highlighted in the NPC decision, enactment of national security legislation has been delayed for 20 years, and Hong Kong cannot rely on the only other “haphazard” source of security law inherited from the colonial government.

At the present, the disagreements between these two camps are far beyond resolved. This is perhaps owed to the inherent contradictions in “one country, two systems”. One can only hope that the central government and HKSAR government can demonstrate their good will through reasonable measures taken pursuant to this new law, and that the conflicts can be quelled without escalation of violence.

Concluding Remarks

The above description has not been, and does not purport to be, a thorough or complete coverage of the variety of opinions and analysis available. However, the author hopes that this short article has offered some new insights into this complex and important issue to those confused by partisan political rhetoric and single-faceted, peripheral reporting.

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