NATIONAL SECURITY LAW 2020: A Tool For Curbing Dissent and Massacring Hong Kong’s Autonomy

Introduction

On June 30, 2020 the Chinese Parliament unanimously passed the national security law titled – ‘The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (HKSAR)’. The new law was passed just an hour before the Hong Kong Day which commemorated the 23^rd anniversary of the establishment of HKSAR. Until getting passed, the provisions of the National Security Law (NSL) were kept highly confidential in order to avoid a massive public backlash and the entire debate over the issue was amidst a series of speculations and conjectures.

However, now when the draconian law is out in public, it has immediately and quite inevitably attracted widespread criticism from the local as well as the international community. The US Secretary of State Mike Pompeo while stating USA’s stand on the NSL said, “The United States will not stand idly by while China swallows Hong Kong into its authoritarian maw.” The EU has even started to restrict the sale of products to Hong Kong which might be used by China for “internal repression, the interception of internal communications or cyber-surveillance”. It is speculated that this move on part of the Chinese government comes in light of the pro-democracy movement going on in Hong Kong which gained momentum during the rampant protests against the extradition bill last year.

The draconian NSL goes against the spirit of Hong Kong’s mini-constitution i.e. Basic Law (BL) that was enacted in 1997 to uphold the principle of ‘one country, two systems’. In this piece, the authors have attempted to examine the validity of various provisions of the National Security Law (NSL)-2020 in light of Hong Kong’s Basic Law (BL) and international obligations. The aspects of free speech, judicial autonomy, privacy and the case laws relating to them that are very essential for this debate have also been discussed.

Curbing Dissent in the Name of Hate Speech?

One of the key aspects of the National Security Law (NSL) is that secession, subversion, terrorism and collusion with foreign/ external forces would be punishable by a maximum sentence of life. The problematic Article 23 of the Basic Law (BL) empowers Hong Kong itself to “enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s government…”. However, Hong Kong has not been able to use this provision in the past 23 years due to mass protests from the locals (most notably the July 1 march against the anti subversion Bill in 2003). The reason behind such protests is that the provisions of such anti-subversion and national security laws would snatch away people’s right to dissent and freely express their opinions against the tyranny of the Chinese government. This is because anything that they say could very easily be labelled within the wide ambit of ‘treason, secession, sedition, subversion’ and eventually be punishable with even life imprisonment.

Since Hong Kong was unable to apply Article 23 of the BL by itself due to the protests, therefore China has attempted to defeat the objectives of such protests and introduce NSL through an alternate route of Annex III to the BL under Article 18. Annex III states that certain Chinese national laws could be applied in Hong Kong either by way of promulgation or legislation. The authors believe that so long as this route remains to be a part of the BL, Hong Kong’s historic autonomy and civil liberty that was guaranteed to it in 1997 remains completely at the mercy of the Chinese government.

It is noteworthy that both Article 39 of the BL and Article 4 of the NSL state that the provisions of International Covenant on Civil and Political Rights (ICCPR) will remain in force in Hong Kong. Therefore, not only Article 27 of the BL but also Article 19 of the ICCPR upholds the right to freedom of speech and expression in Hong Kong. However, Article 29(5) of the NSL states that “provoking by unlawful means hatred among Hong Kong residents towards the Central People’s Government or the Government of the Region, which is likely to cause serious consequences”. This vaguely worded provision suggests that even a mere criticism of or dissent against the Chinese government can be considered as a grave offence, leading to a crackdown on political activism. The restrictions under Article 29 (5) of the NSL also don’t abide by the four-pronged proportionality test laid down in Hysan Development Ltd v. Town Planning Board.

“The requisites of the test were as follows:

• The restriction or limitation must pursue a legitimate aim.
• The restriction or limitation must also be rationally connected to that legitimate aim.
• The restriction or limitation must also be no more than is necessary to accomplish that legitimate aim.
• Weighing the detrimental impact of the restrictions against the social benefit gained.”

The aforementioned provision has already led to several arrests of political activists calling for the independence of Hong Kong and protesting against this draconian law. In Kwun Tong, eight people were immediately arrested for participating in a peaceful ‘blank placard’ protest against the NSL. Therefore, the NSL is also in contravention of Article 28 of the BL which seeks to preserve the liberty of the residents of Hong Kong by shielding them against arbitrary or unlawful arrest, detention or imprisonment. Fearing repercussions, many pro-democracy groups in Hong Kong have already disbanded, with their leaders stepping down.

Article 38 of the NSL states, “This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region”. While this provision is regarding the extra-territorial jurisdiction over the non-permanent residents of Hong Kong, it is noteworthy that the feasibility of its application and enforcement is highly questionable. It could have been made more specific by using terms like ‘extradition’. However, going by the current wording, a possible interpretation of this vaguely worded provision could also be that the NSL can be applied to any person regardless of their nationality. This could include even the citizens of countries that haven’t signed extradition treaties with Hong Kong. All of this hints towards the devious political intentions of China.

Danger to Judicial Autonomy

Another noteworthy feature of the BL is that it vouches for a strong and independent judiciary under Article 85. Right to fair trial is also guaranteed under Article 87 of the BL. However, according to Article 41 of the NSL, on grounds of maintaining public order and state secrets, certain trials can be closed for the public and media. Further, Article 46 of the NSL states that in such cases, the trial can also be conducted without a jury by a panel of three judges in the Court of First Instance. According to Article 44 of the NSL, the judges in such situations can easily be handpicked by Hong Kong’s Chief Executive, who is directly answerable to Beijing. Moreover, the ‘Committee for Safeguarding National Security’ created under Article 12 of the NSL which would be responsible for formulating the national security policies would have no judicial scrutiny of any sort as stated under Article 14 of the NSL. Furthermore, China can have jurisdiction over ‘very serious’ cases involving a threat to national security. All of this heavily jeopardizes Hong Kong’s judicial autonomy.

Transgression of Privacy Standards

Article 30 of the BL provides for the freedom of privacy of communication and Article 17 of ICCPR provides protection from unlawful or arbitrary violation of people’s privacy. However, Article 43 of the NSL provides sweeping powers to the police to probe alleged offences, thereby leading to transgression of people’s privacy.

It is accepted that Article 30 of the BL does contain the exception of legal procedures by relevant authorities for public security. However, the Chan Kau Tai case had extensively discussed about striking a balance between a citizen’s right to privacy and such legal procedures as one cannot be brought about at the expense of the other. Article 43(6) of the NSL fails to strike such a balance as it empowers the authorities to wire-tap and surveil suspects who can endanger national security by taking the approval of the Chief Executive.

Conclusion

History bears testimony to the fact that the Chinese government has very frequently been at loggerheads with Hong Kong over the issue of its autonomy. However, this move in the name of national security seems to be nothing less than a massive and blatant massacre of basic human rights and civil liberty. All in all, it is beyond any doubt that the NSL tremendously expands the powers of the Chinese government to arbitrarily prosecute and punish the dissenters in Hong Kong, and is nothing but a mere tool to sabotage its autonomy and civil rights. Whether it is the freedom of speech and expression or judicial autonomy or maintenance of standards of privacy, the NSL falls flat on the ground on all fronts.