Hong Kong’s National Security Law: Power Not To The People

You might have heard of the unrest in Hong Kong last year, stemming from the Government’s attempt to introduce an extradition agreement with Mainland China and culminating in a full-blown humanitarian crisis with the enactment of the National Security Law (NSL). Why was the extradition agreement met with such vigour? The proposed Bill would have led to both foreign nationals residing in Hong Kong and local criminal suspects becoming extraditable to mainland China, which has a substantially different criminal justice system and a history of breaching fundamental human rights. This has included arbitrary detention, unfair trials and torture, with the only requirement that “prima facie” evidence, which carries a significantly low standard of proof, be provided to the Chief Executive and the courts. Following escalating public clashes between the Government, police and citizens, and protests seeing over a million people in attendance and over 10,000 people arrested, the Bill was shelved. But by that time, the damage was done. The Bill exacerbated the deep fears of local citizens and expats in Hong Kong, who saw it as an early sign of China’s descent upon the nation and the dark future to come.

Several demands arose from the locals: the formal withdrawal of the Bill, release and exoneration of those arrested from the protests, the establishment of an independent commission of inquiry into police behaviour, universal suffrage for the Legislative Council, Chief Executive elections in addition to the resignation of Chief Executive Carrie Lam, and lastly the retraction of the characterisation of protests as “riots”. Somewhat unsurprisingly, only the first demand was met, which was seen by the Hong Kong people as highly unsatisfactory, and protests continued with increasing intensity. All this culminated in the Chinese Standing Committee of the National People’s Congress enacting the NSL, which opened a bigger can of worms.

Protesters marching at the “Stop Police Violence, Defend Press Freedom” silent march called after media professionals were insulted by police officers when covering protests against the extradition law to China. (Credit: Ivan Abreu, SOPA Images, Sipa via AP Images.)

Under the Sino-British Joint Declaration of 1997, resulting from the First and Second Opium War, Britain handed back control of Hong Kong to China on the condition that the “One Country, Two System” and freedoms of free speech, assembly, religious belief, amongst others, would continue to be enjoyed by the former until 2047. The NSL contained intentionally vague provisions, which would allow for ‘secession, subversion, terrorism and collusion with foreign forces’ to become punishable by a maximum sentence of life in prison. Having already been exercised to charge 50+ individuals, this has naturally given rise to a sense of deep unease in both the domestic and international sphere. As the legislation would have also allowed cases to be tried in Mainland China under their legal system, there was a real risk of criminal suspects being deprived of fundamental human rights, like being held incommunicado in undisclosed locations for up to 6 months before being formally arrested or released. Whilst the UK has similar national security laws in that suspected terrorists can be detained without charge for up to 28 days, these individuals are nevertheless allowed legal representation after a maximum period of 48 hours upon arriving at the police station. Compared to Mainland China, the UK is subject to more intense public and legal scrutiny whenever human rights are undermined. The legislations effect is essentially a complete curtailing of free speech, press and political dissent in Hong Kong. Critics worldwide have speculated that this directly contravenes the Joint Declaration’s condition of “One Country, Two Systems”, with the addition of the NSL being also applicable to crimes committed abroad, to non-permanent residents and people outside of Hong Kong. This means that the reach of the law is far and extensive, essentially subjecting foreign nationals to r to the authority of the NSL. 

Whilst the realistic probability of extraditing foreign citizens in the West for crimes committed against the communist party are relatively slim, the law has already caused a growing reluctance amongst foreign investors to conduct business in Hong Kong for fear of being subject to the extensive powers of the NSL. After the emergence of Covid-19 and consequent increasing criticism towards the Communist Party, it will be a matter of great importance for there to be checks and controls to prevent Mainland China’s ever-increasing influence. If they are left unchecked, one can only hope to stay out of the line of sight of the Chinese Government, and that is something I concern myself with, as this article has the potential to be considered “subversion” under the draconian National Security Law.

May Lam, History in Politics Contributor

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