On Friday, the Chinese government released the full text of a draft resolution requiring the implementation of national security laws in Hong Kong. The resolution, which will bypass the normal legislative process in Hong Kong by being introduced in Annex III of the Basic Law—Hong Kong’s mini-constitution—requires the Hong Kong government to enact its own national security legislation. The last time the Legislative Council tried to do so in 2003, mass protests forced them to withdraw the motion. From a translation of the resolution by China Law Translate:
The state will unflinchingly and accurately implement the principles of “one country, two systems”, “Hong Kong people ruling Hong Kong” and a high degree of autonomy, and uphold the principle of governing Hong Kong according to law, to preserve the constitutional order of Hong Kong Special Administrative Region as determined by the Constitution and the Basic Law of the Hong Kong Special Administrative Region, and employ necessary measures to establish and complete the Hong Kong Special Administrative Region’s legal system and enforcement mechanisms for preserving national security, and lawfully preventing, stopping, and punishing, conduct and activities that endanger national security.
[…] The Hong Kong Special Administrative Region shall complete legislation for preserving national security as provided for in the Basic Law of the Hong Kong Special Administrative Region as soon as possible. The administrative, legislative and judicial organs of the Hong Kong Special Administrative Region shall, in accordance with relevant laws and regulations, effectively prevent, stop, and punish conduct endangering national security. [Source]
Four key provisions in national security law framework:
-directly applied in HK
-BJ may choose to set up security agencies in HK, plus a local one in HK
-HK still needs to enact own security law
-judiciary asked to prohibit and punish acts threatening national security pic.twitter.com/lVRFwhyARY
— Alvin Lum (@alvinllum) May 22, 2020
The resolution also allows the Chinese government to establish security and intelligence agencies in Hong Kong. Under the “One Country, Two Systems” framework, Hong Kong currently operates its own law enforcement and judicial systems, independent of China. Clare Jim and Jessie Pang of Reuters report:
The document said the laws will safeguard the central government’s “overall jurisdiction” as well as Hong Kong’s “high autonomy” given Hong Kong’s “increasingly notable national security risks”.
“When needed, relevant national security organs of the Central People’s Government will set up agencies” in Hong Kong to safeguard national security, the draft said.
Hong Kong’s judiciary, along with the government and legislature, must “effectively prevent, stop and punish acts endangering national security”, it states. The reference to Hong Kong’s staunchly independent legal system has rattled some Hong Kong lawyers.
[…] “It is essentially declaring directly that ‘one country, two systems’ is null and a failure,” said Eric Cheung, principal lecturer at Hong Kong University’s department of law, of the legislation. [Source]
However, there remained some uncertainty over whether Chinese law enforcement would be allowed to operate in Hong Kong under the Basic Law:
Beijing has already asserted that BL Article 22 doesn't bind the existing Liaison Office (purportedly because it is a direct emanation of the Central Government, rather than a department "set up by" the Central Government). So they could use the same logic for any new agency.
— Wilson Leung 梁允信 🇭🇰 (@WilsonLeungWS) May 22, 2020
The National People’s Congress Observer Blog explained the legality of the new resolution on Twitter:
The Decision confirms that (1) it itself isn't the new nat sec law; (2) it does authorize the NPC Standing Committee to write such a law for HK; and (3) the law will be listed in Annex III and implemented upon promulgation. The HK legislature thus won't have any role to play.
— NPC Observer (@NPC_Observer) May 22, 2020
1. The new law need not be exclusively criminal, given the broad scope of the authorization.
2. But the new law will create new "nat sec" crimes, including separatism, "subversion of state power," organizing or carrying out terrorism & foreign forces' interference in HK affairs.
— NPC Observer (@NPC_Observer) May 22, 2020
Legal scholar Jerome Cohen weighs in further on the impact of Beijing’s move on Hong Kong’s government and citizens:
The NPCSC will prevail in legal terms, given the wording & structure of the Basic Law, the provisions for its interpretation & the way those provisions have been applied in recent years. But the political costs to the Central Gov't & the people of Hong Kong will be very high. 4/n
— Jerome Cohen 孔傑榮(柯恩) (@jeromeacohen) May 22, 2020
#China's NPC to "review" next Mon & Tues the proposal for #nationalsecurity law in #HongKong and"vote" 3pm next Thurs May 28. Gee, wonder how that tally might swing in a rubber-stamp parliament under an authoritarian regime… 🤔 https://t.co/YWQJYnNrzG
— Sophia Yan (@sophia_yan) May 22, 2020
In his analysis of Premier Li Keqiang’s Work Report presented at the opening of the National People’s Congress session, David Bandurski of China Media Project describes how Wang Chen, vice-chairman of the NPC Standing Committee, discussed the new legislation in a speech Friday:
The work report itself deals only very briefly with the question of Hong Kong in the final section (in the fourth to last paragraph, in fact), following general language about the CCP’s leadership of the armed forces and the determined protection of “national sovereignty, security and development interests.” Hong Kong and Macau follow together, without any particular emphasis, before the issue of Taiwan is addressed.
[…] The work report is intended as a broad overview of goals and a summary of supposed achievements, so we should not be surprised that it glosses right over this major development. The details were more forthcoming, and the language far more astringent, in the speech this afternoon (on video here) from Wang Chen, vice-chairman of the NPC Standing Committee, specifically addressing the question of new legislation for Hong Kong. Wang said, to a chilling chorus of pre-scripted applause (his voice even rose in anticipation at precisely this point) that “strong measures must be taken to stop and to punish” what he characterized as actions “seriously challenging the bottom line of the principle of ‘One Country Two Systems’, and seriously damaging national sovereignty, security, and development interests.” [Source]
Hong Kong Chief Executive Carrie Law has said she and her government will cooperate with Beijing to implement new national security legislation as quickly as possible. From Kelly Ho at Hong Kong Free Press:
Lam backed the NPC’s proposal to include national security laws in Annex lll of the Basic Law, saying that it was “undoubtedly within the purview of the Central Authorities.”
She added the decision would not amend the Basic Law, nor replace or repeal Article 23 in Hong Kong’s mini-constitution, which allows the city to make laws to ban actions that they see as endangering national security.
“In other words, the HKSAR still has the responsibility to complete legislation for Article 23 of the Basic Law as soon as possible,” she said.
[…] “After the passage of the Decision, the HKSAR Government will fully co-operate with the Standing Committee of the NPC to complete the legislation as soon as possible to discharge its responsibility of safeguarding national security to ensure the long-term prosperity and stability of Hong Kong under “One Country, Two Systems,” she said. [Source]
In an explainer of the new laws at Lausan, Vincent Wong outlines what activities the new laws will potentially cover:
This effectively bans a broad spectrum of political activity, which would include much of what we’ve seen from the Hong Kong movement thus far. The enforcement of sedition and subversion laws diminishes Hongkongers’ right to free speech and press freedom. Any relationships with foreign political organizations could be categorized as foreign interference. Clashing with the police, even if in self-defense against their unaccountable violence, could be labeled as terrorist activity.
However, national security clauses aren’t new to Hong Kong. Many of them are found in Article 23 of Hong Kong’s Basic Law, the city’s mini-constitution, but efforts to pass these laws were ultimately scrapped after half a million people protested its passage in 2003. So what’s different this time? Why has this news caused such an uproar? Why has the pro-democracy lawmaker Dennis Kwok called it “the most devastating thing to happen to Hong Kong since the handover”?
This is because after this past year of protests, Beijing has arrived at the conclusion that the Hong Kong government (and its Legislative Council) can no longer be trusted with the passing and enforcement of national security laws.
In other words, the Xi administration is fed up with Hong Kong and is no longer satisfied with letting Hong Kong Chief Executive Carrie Lam “manage” the Hong Kong protest movement. Instead of observing from afar, the Xi administration has decided to directly intervene in Hong Kong’s lawmaking processes and intends to beat Hongkongers into submission using “rule by law.” [Source]
Participants in the 2019 protest movement—which started in opposition to a planned extradition bill and later expanded to more generalized demands for democracy—have expressed their fears over this new legislation. Some are also concerned that it may lead to more extreme resistance measures. Natasha Khan writes for the Wall Street Journal:
“I don’t know which is worse: the law itself, or the process of allowing the standing committee to pass the law for Hong Kong,” [veteran pro-democracy activist and legislator Martin Lee] said, referring to Beijing’s plan to use its highest political body to introduce laws for Hong Kong and override the city’s lawmakers. “It’s a dangerous precedent set at a critical stage, and in the future they can repeat the same thing again and again.”
[…] While many dissidents vowed on Thursday to continue their fight, they said protest tactics may change from mass rallies to underground resistance, with some resorting to lone-wolf attacks to highlight their cause. Police in recent months have warned of rising threats of bombs and other violent acts.
Ivan Choy, a senior lecturer at Chinese University of Hong Kong’s school of government and public administration, said Beijing’s tougher stance may lead to more extreme protests.
“This will provoke further reaction from younger generations,” he said. “It will be very difficult for more moderate voices in society to tell them to stay calm and see a political solution now.” [Source]
For The New York Times, Vivian Wang and Austin Ramzy report on how members of the protest movement are figuring out how to shift course from confronting their local leaders to directly taking on Beijing. Some are appealing to the international community for support:
Stunned and saddened, many protesters on Friday seemed demoralized and uncertain of their next move. While some on social media called for rallies or singalongs, several organizers said they would focus on events already planned for the coming days. Those demonstrations include a rally scheduled for Sunday to oppose a separate drive by Hong Kong officials to criminalize disrespect of the Chinese national anthem.
[…] Hong Kong’s reaction to the Chinese government’s plan likely won’t stay muted for long. Many in the anti-Beijing camp said they believed the protests would mushroom as social distancing measures eased. The Hong Kong government recently extended the restrictions through at least June 4.
The city’s democracy activists also emphasized that the details of Beijing’s plan remain unclear and that any law would likely not go into effect for several months, giving them time to mobilize.
“Next week, the main thing might be the national anthem law, but in the coming months, the main thing will be the national security law,” said Agnes Chow, a prominent student activist. “I believe there will be a lot of mass protests in the coming weeks and months.” [Source]
A former pro-democracy lawmaker, Lee Cheuk-yan, said at a news briefing by opposition parties and activists that Chinese leader Xi Jinping “has torn away the whole pretense of ‘one country, two systems’” and that Beijing is “directly taking control.”
“They’re trying to ban every organization in Hong Kong who dares to speak out against the Communist Party,” he said, describing it as a challenge to global values such as freedom and liberty.
Office worker Tiffany Chung called it ridiculous. “They promised ‘one-country, two-systems, but the content of the security law is basically implementing ‘one country, one system,’” she said. [Source]
Mr. President @realDonaldTrump, I hope you find out what it is soon, and do indeed address the issue very strongly. The bipartisan #HKHRDA, which you signed into law last November, provides some important tools to respond. #HongKong needs the world now. https://t.co/f1Df1EIgGX
— Joshua Wong 黃之鋒 😷 (@joshuawongcf) May 21, 2020
Secretary of State Pompeo issued a strongly worded statement on Hong Kong, and two senators have introduced a bill to sanction Chinese officials and entities responsible for implementing the new laws. At the Washington Post, Shibani Mahtani looks at what other options the U.S. has for censuring China over this move, as the two countries are in the midst of a downward spiral in relations due to ongoing trade disputes and mutual accusations over responsibility for the spread of the coronavirus pandemic.
China’s provisions against “foreign interference” appear to put diplomats at risk of harassment; already, China last year leaked personal information of an American official in Hong Kong, accusing her of fomenting unrest, and detained an employee of the British consulate, who said he was blindfolded and shackled.
“If agents of China’s national security apparatus can operate in Hong Kong, they can use the same methods that they use in China,” said Leung Kwok-hung, a political activist in Hong Kong. “That is the end for us.”
Beijing’s gambit — imposing its will by decree, bypassing legislative procedures it promised Hong Kong under the terms of the 1997 handover — prompted warnings and indignation from Washington. And it marked a decisive blow in China’s efforts to undermine Hong Kong’s constitution, the Basic Law, and the “one country, two systems” formula that is supposed to preserve the city’s political rights and autonomy until 2047.
Armed with new tools, namely the Hong Kong Human Rights and Democracy Act, the question now is how far the Trump administration will go in its response. Attention is falling on whether the United States will end Hong Kong’s trade privileges by certifying that the territory should no longer be treated separately from China — a step many regard as a nuclear option because of the implications for business — or sanction key officials. [Source]
The U.K., Australian, and Canadian governments issued a joint statement against the laws. International human rights organizations including Amnesty International, Human Rights Watch, and Chinese Human Rights Defenders also condemned the move.
The intl community must take necessary & appropriate actions to stop China’s violations of Basic Law. This includes enacting and implementing sanctions legislation targeting govt’s continuing & escalating violations of human rights in the mainland, Hong Kong, Tibet & Xinjiang.
— CHRD人权捍卫者 (@CHRDnet) May 22, 2020
At the Guardian, Ilaria Maria Sala and Louisa Lim write that the new legislation “threatens to undermine all the cherished institutions and rights that distinguish this international city from mainland China”:
In Hong Kong, the news was met with numb disbelief. It was “the saddest day in Hong Kong’s history” according to the pro-democratic Civic party politician Tanya Chan. The very vagueness of mainland Chinese definitions of sedition, subversion and secession could criminalise groups such as religious believers, political parties advocating greater autonomy and even those who organised Hong Kong’s massive protests, some of which saw more than 1 million participants.
Given that Hong Kong’s future autonomy is now uncertain, the move also brings into question the city’s future as an international business centre. The news was met by protests in the legislative council and calls for more street action in spite of the ongoing restrictions on gatherings of more than eight people due to the pandemic.
Hong Kong’s defenders have often hoped the city would be protected by its role as a world city, thanks in no small part to the institutions that distinguish it from mainland China. Some warned that this would not be enough to protect Hong Kong from the Communist party. Before the handover, tycoon Vincent Lo Hong-shui, then chairman of the General Chamber of Commerce, issued a stark warning: “It’s really a myth to think that they will not kill the goose that lays the golden egg.” Through the enactment of this legislation, two decades later, those fears have now come true. [Source]
So what now? What can we in Hong Kong do? What can anyone do?
[…] Maybe it’s time to remind ourselves that Hong Kong has been really good at protesting, at acting, at being creative and surprising.
We surprised the government when half a million of us came out to stop the original national security bill in 2003.
Last summer, we surprised the world with a one million-person march. And then we surprised the world again, this time with a cool two million-strong march. We got the extradition bill killed.
[…] We refuse to be domesticated. Freedom is never free. But we earn our souls. [Source]
Further responses from Twitter:
The massive NO NEED TO BE AFRAID towering over the city is a nice touch https://t.co/3VWU7qhFqi
— Jonathan Cheng (@JChengWSJ) May 22, 2020
Coverage of HK nat'l security legislation is on pg 4 of today's People's Daily. Quotes pro-Bejing labor head saying "collusion between HK opposition parties and outside forces is a clear fomenting of color revolution." https://t.co/WWZSK5DoLn pic.twitter.com/wMdWXIQD2K
— China Media Project (@cnmediaproject) May 22, 2020
Just messaged my parents in Taiwan, asking whether people care about the national security law in HK. They said that every single channel is talking about it non stop.
This is about more than just HK, it's about the fate of democracy in Asia as a whole.
— Gene Lin 林靖 (@lin_gene) May 22, 2020