This article is written by Meera Patel from Maharaja Sayajirao University, School of Law, Vadodara. This article showcases the new security laws of Hong Kong and the related controversies.

Introduction

On 1st July 1997, the British colony handed over Hong Kong to China, and exactly 23 years later, on 1st July 2020, Beijing instigated hundreds of rioters and protesters in Hong Kong by introducing the new security laws unanimously which were titled as “The law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region.” The new security laws were devised in confidentiality and weren’t disclosed until the new laws came into effect. 

History of Article 23 of Hong Kong’s basic laws

In 2003, the HKSAR (Hong Kong Special Administrative Government) proposed a bill which was known as the ‘National Security (Legislative Provisions) Bill 2003’ to the legislative council to amend the authoritative laws in regards to crimes and State secrets by the functioning of the Article 23 of the Basic Laws of Hong Kong’s SAR of China. Various controversies were created and therefore, the bill lost the support of the legislative council. Thus, the bill was kept aside for good.

The hype of reintroducing the above-mentioned bill began to go up by a few pro-independence activists but Beijing made it clear that the mainland will not permit anyone who favours a secession nor will it allow any pro-independence activist body associate themselves with the government institutions. 

In 2020, the protests in Hong Kong pushed the lawmakers of Beijing to an edge and the Mainland felt the need to legislate Article 23 and thus, on 21st May 2020, the Beijing government proposed a new security law for Hong Kong which was implemented in Hong Kong on 30th June 2020.

Hong Kong security laws

The new laws are not only viciously dangerous but also ambiguous and extensive. Hong Kong, a coastal city that cannot be classified as a country or a state is a special administrative area under the rule of the Chinese government practices and its semi-autonomous freedom. Hong Kong runs on the principle of “ one country, two systems.” The principle explains that Mainland China allows socialism (China) and capitalism (Hong Kong) under one roof. In other words, the principle upholds the unity between the nations, territorial integrity and helps Hong Kong remain stable and prosperous. 

The new security laws of Hong Kong have shaken up the entire city and instigated many protesters to stand up for their rights and needs. Article 23 of Hong Kong’s Basic Laws was never actually implemented states that Hong Kong’s administrative region would enact laws all by itself to interdict any unlawful activities like treason, secession, sedition, and subversion, stealing state secrets, forbidding foreign political entities to perform political events in the region and to prohibit political bodies of Hong Kong to form relationships with foreign political bodies.

1. Treason: treason refers to a crime that involves the act of betraying one’s country by attempting to kill, topple, or planning/ executing a hostile takeover of the government of the country.
2. Secession (Article 20): a secession is an act of termination of an official member of a political body (government)
3. Sedition: a sedition is an act of instigating people against the acting government of the in-power political body via speeches and media.
4. Subversion (Article 22): a subversion is an act of not believing in the power and authority of the acting government. In other words, subverting the authority of an established political body.

On 30th June 2020, the Chinese government imposed relatively identical new security laws on Hong Kong where secession and subversion were covered under Article 18 of the Basic Laws of Hong Kong. The rest untouched areas such as treason, sedition, and theft of the State secrets haven’t been covered under Article 18 as such but there is a chance they can be implemented under Article 23 by the Hong Kong SAR.

Key points of the new security laws

Hong Kong is obliged to pass a national security law by Article 23 but the government failed to do so therefore China took the matter in its hands. The laws that were drafted in Beijing inculcate the bans that were imposed on secession, subversion, terrorism, and associating the SAR with a foreign political entity/ establishment/ body. Most of the critics have reacted to this law stating that it suppresses the freedom of speech of the citizens and it could bring about.

The key points of the new security laws include:

1. The maximum sentence of punishment for an act of broadly defined crimes like session (Article 20), terrorism (Article 24), subversion (Article 22), and collusion with foreign political establishments (Article 29).
2. Any person who would be found guilty of any crimes that have been listed in the new security laws will not be allowed to stand for any such office posts. If the owner of a company is convicted, the company will have to bear the charges such as financial penalties and license quashing. 
3. A new independent law enforcement officer will be established in Hong Kong by Beijing with their official personnel and the local authority will have no authority over Beijing’s jurisdiction. The policy of granting bail has been revoked and only a few exceptions will be granted bail that too by the jurisdiction of the judge if he/she feels that the convict has a very strong reason.
4. Any act of damaging any public transportation will be considered as an act of terrorism.
5. Beijing has the authority to conduct some trials in a few cases where the convicts of Hong Kong will be taken to Mainland China. According to the new laws, selected cases will be heard in private. Or in simpler words, those selected cases will not be exposed to the public and the main reason behind this is to save State secrets and public orders. Cases that will be tried behind the closed doors shall be selected by the judges.
6. It has been made compulsory that Hong Kong will have to create its own National Security Commission to enforce its security laws and the commission must have an official advisor who must be from the People’s Republic of China.
7. After the implementation of these laws, the chief executive of Hong Kong will have the jurisdiction of appointing or selecting the judges for a term of one year. 
8. It has been established that Beijing will have authoritative power over how the laws would be interpreted in Hong Kong and the jurisdiction of any political establishment of Hong Kong will not be entertained.
9. A new national security department is to be created in Hong Kong within the police force and the operational information will not be made public.
10. It has been established that the new policies will be applied to the non-permanent residents of Hong Kong too.
11. The new security policy promotions have been extended to schools and colleges too.

Controversy related to the new security laws

Even though Hong Kong was not an independent country, the new security laws have dug a grave for the civil liberties such as the freedom of speech, freedom to protest and the new laws have raised fear in the civilians of Hong Kong in regards to their judicial autonomy. Many say that the new laws are a tool to suppress the agitation faced in Hong Kong and the critics even went to the extent to say that China is manipulating Hong Kong according to their communist needs. In simpler words, China is trying to remove all the threatening actions out of its way. 

Countries like Australia, Canada, New Zealand have criticized the new policies that were imposed on Hong Kong. The main thing that makes this situation a controversy is the ongoing coronavirus pandemic. The president of the US chose to term the new policy changes in Hong Kong as a tragedy as he targets China and adds a statement saying China has converted the‘one country, two systems’ to ‘one country, one system.’ Similarly, various countries have targeted China via Hong Kong.

The residents of Hong Kong have been instigated to take up pro-democracy as their motto as they wish not to be controlled by the Chinese government.

The main concern related to the new laws

The main concern that triggers the residents of Hong Kong is the fear of losing control over their civil rights such as freedom of expression/ speech. Beijing believes that imposing these laws on Hong Kong is for their betterment as the lack of security laws in Hong Kong refuses to understand the gravity of the situation of safeguarding their national security.

The new laws have made some appalling bumps on the citizen’s civil rights where their freedom of speech and expression are the ones taking the hardest blow. This is concerning as the people of Hong Kong have been enjoying these rights since 1997 when it gained its semi-autonomy from China along with their mini-constitution which worked on the principle of ‘one country, two principles’ but at the same time, none of the Chinese residents has enjoyed such rights, therefore, the Hong Kong residents are scrabbling over the fact that they need to protect their political independence and rights from China.

The people of Hong Kong are worried that these laws will wear away the judicial autonomy and independence of the semi-autonomous coastal city and in some time, the judiciary will be similar to that of China’s judiciary. They feel Hong Kong will lose its identity. In other words, the critics feel that China is imposing its criminal justice rules on Hong Kong, stealing their only identity from them which was used to separate Hong Kong from the People’s Republic of China.  

Who gets affected by the new laws

Other than the revocation of the freedom of expression, huge targeted demography has been affected by the new laws. 

1. Going down a path to eradicate the pro-democracy principle that the people of Hong Kong started to protest for, under the new laws, the political slogan printed flags/ banners/ etc were confiscated from the residents in the name of national security. This is an example of how new laws infarcted international human rights and standards. 
2. On the face of it, it might seem that China has done everything that is under its reach to maintain basic human rights by signing the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, the recently imposed laws says otherwise.
3. The media will be the one who will feel the major impact from the new laws as it is a sector that fully relies on the freedom of expression and without it, the media will lose its essence in the first place.
4. Just like the Chinese laws, any person who would commit an act of crime of subversion, they will have to face a minimum sentence of life imprisonment. Therefore, this proves that professionals such as journalists, activists, lawyers, etc whose career depends on the truth and reality will have to endanger their lives to earn their living.
5. Activities in association with foreign entities such as friendly protests, taking donations for some good cause, etc would be considered as colliding with foreign political establishments and eventually a ‘threat’ to national security.
6. The most ambiguous part of the new law proposes that all the nonresidents, as well as the residents of Hong Kong, will have to face consequences if they are suspected to impose any threats to the ‘national security’ of Hong Kong. People who don’t even live in Hong Kong but are under the jurisdiction of China will be held as violators of these laws. Even the noncitizen residents can face deportation before any trials if found guilty from any such acts of crime.
7. Under the new laws, offences such as damaging of public transportation can be considered as an act of terrorism. And if terrorism is considered as a threat to the national security, it is deemed to be an unjust law for the people of Hong Kong as these offences could be used to falsely trap someone under probable heavy punishments. 
8. The government is spreading the awareness of the new laws in schools too and along with that, the new rules even restrict the students from enjoying their rights to exercise their freedom to express themselves. Discussion of political issues could constitute a threat to national security.
9. The privacy of people can be undermined as the newly appointed authorities have the right to search properties, censor things unsuitable according to the law, practice clandestine inspection for every little type of communication without any authoritative court orders. 
10. The government has the authority to squeeze out self-incriminating information too and if someone fails to do so will suffer consequences such as a fine or imprisonment. This violates one more civil right the people enjoy that is the right to silence.

Conclusion

To conclude, the recently imposed security laws have stirred up a lot of controversy around the world. Whether the opinion of the world is based upon the fact that the recent coronavirus pandemic that is being spread in the world originated from China or if it is purely on the basis of the fact that since China imposed the new security laws on Hong Kong, the coastal city has lost its identity as a semi-autonomous administered region. 

According to the pro-democracy crowd, the new laws have brought about a change that has changed the meaning of the principle on which Hong Kong had been running all these years, that is ‘1 country, 2 systems’.

References 

• https://www.bbc.com/news/world-us-canada-52856876
• https://www.bbc.com/news/world-asia-china-52765838
• https://www.amnesty.org/en/latest/news/2020/07/hong-kong-national-security-law-10-things-you-need-to-know/

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