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26th Anniversary: The National Security Law and the Freedom to Dissent in Hong Kong by Siddharth S


Image Courtesy: Vox


Article: 16/2023


The National Security Law and the Freedom to Dissent in Hong Kong

This June 30, 2023 marks the third anniversary since the roll out of Beijing’s New Security Law. The NSL was put in place in Hong Kong’s Special Administrative Region under the People’s Republic of China in response to a series of pro-democracy protests carried out by pan-democrats and many other anti-Chinese Communist Party factions. The law allows Beijing to curb several political crimes, allowing the imposition of life imprisonment for “grave crimes”. Under this law, even acts of damaging government buildings can be penalised with life imprisonment. The major activities targeted - subversion, terrorism, separatism and collusion are vaguely defined in the language of the law and can be used to criticize citizens that oppose the CCP.


Under the New Security Law passed by the Chinese National People Congress, a total of 10, 200 protestors have been detained between 2019-2021. However, the quiet in protests throughout 2022 have been broken with a new series of pro-democracy campaigns launched during the 34th anniversary of the Tiananmen Square incident in Beijing this June 4 where close to 80 demonstrators have been detained under the new security law.


The Legality of the New Security Law

The National Security Law of the Special Administrative Region of Hong Kong had been introduced by the Hong Kong legislative council on 30th June 2020, an hour prior to the 23rd anniversary that marks the handover of Hong Kong from a British colony to that of a Chinese state. The Chinese legislature had promulgated the National Security Law, and with its passage in China the ruling Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) Party of Hong Kong implemented the legislation into Hong Kong Law. The easy passage of the Beijing-introduced legislation into Hong Kong’s Council is due to the latter’s government system that follows the administrative devolution under a unitary, one-party state. The simple implication may seem to be that Beijing directs a portion of its administrative powers to the pro-PRC DAB Party, the incumbent ruling party of Hong Kong and having a majority in its legislative council.


According to the Basic Law, the Chinese mainland cannot apply its concerned laws to the special administrative region of Hong Kong unless listed in the Annex III section of the mini-constitution. Listings added within the Annex III may be bound to bypass the Hong Kong parliament; the legislative council in the context thereafter making the path ahead for a Chinese legislation as a backchannel entry. Sources within Hong Kong have also identified certain Chinese ‘uncontroversial’ laws already found listed in the Annex III to the Basic Law – mostly on matters related to Hong Kong foreign policy. Media reports believe that the Chinese have exploited the loophole much before the general public of Hong Kong could have noticed.


The Chinese have used the Annex III loophole as a means to cater to their pro-Beijing centred policies and have pushed the Hong Kong legislative Such includes the mention of open surveillance on law-breaking individuals through wire-tapping, Hong Kong’s independent national security commission with a Beijing-appointed advisor to steer-through law enforcement and the extension of the law’s applicability to non-permanent residents as well as visiting residents to the Hong Kong Special Administrative Region of the People’s Republic of China.


However, the NSL seems to be in contention with the terms of agreement of the Kong Kong handover from the British, and the Basic Law of Hong Kong which serves as its mini-Constitution. The Chinese government are supposed to protect the fundamental rights for the citizens of Hong Kong – the freedom of speech, expression and assembly as well as independence of the Hong Kong judiciary. The NSL was not enshrined overnight, and the right to dissent was curbed in HK when the extradition bill of 2019 allowed HK protestors to be tried in mainland China. The turning point of the Hong Kong question had revealed itself when China had pushed forward for an extradition bill legislation in 2019 which could allow for Hong Kong protest-suspects to be sent for trial in mainland China. Given the news, the protestors – that comprise majorly the human rights activists, lawyers and students had stormed in groups onto the streets of the city to protest against the Chinese legislature-passed extradition bill.

Credit: Ms. Sejal Mehta, Research Intern, C3S


How is the National Security Law in contention with the Agreement?

The National Security Law brought in by the Chinese government and enforced by the Democratic Alliance Party of Hong Kong (DAB) contains a total of 66 articles. Sources reveal that the details of the law were kept confidential that were restricted within the Hong Kong legislative council until the majority within the House had passed and subsequently enforced the Chinese government’s legislation into a law.


The initial reason for the pro-democracy movement to have re-emerged in the Tiananmen Square anniversary this June was because of the identified violation of the UK-China Agreement clause. The clause stated that the People’s Republic of China government would not meddle with the political or administrative affairs of Hong Kong for at least 50 years from the British handover of Hong Kong to China. However, the UN is unable to enforce this agreement due to the lack of proper monitoring and enforcement mechanisms in the agreement.


Another yet equally significant reason for contention is the lack of separation of powers between the interpretation of Hong Kong’s judiciary and that of Beijing’s judicial law. A clause within the law reaffirmed Beijing’s authority on the final interpretation of the law within the Hong Kong special administrative region of the People’s Republic of China.


However, the mere completion of 25 years prior to the Chinese government bringing the National Security Law within the folds of the Council is demonstrative of the very impatience brought out by the Chinese Communist Party leadership against a slow and steady policy of building connections between the administrative region and the Chinese mainland (BBC 2022). This move is very typical and reflective of the behaviour demonstrated by the Chinese government with yet another simple Chinese territory within the mainland – the torture of individual rights and freedom, media restrictions on publicity and propaganda stream and unrestricted tactics adopted by the local police towards curbing non-violent protests and their subsequent detainment for long term in prison.


References

BBC. 2022. "Hong Kong national security law: What is it and is it worrying?" BBC News. June 24. Accessed June 26, 2023. https://www.bbc.com/news/world-asia-china-52765838.

BBC. 2021. "Hong Kong: How life has changed under China's national security law." BBC News. June 30. Accessed June 26, 2023. https://www.bbc.com/news/world-asia-china-57649442.

Kang-chung, Ng. 2021. "Hong Kong protests: more than 10,200 arrested in connection with unrest since 2019, government tells lawmakers." BBC News. April 09. Accessed June 26, 2023. https://www.scmp.com/news/hong-kong/politics/article/3128836/hong-kong-protests-more-10200-arrested-connection-unrest.

(Mr. Siddharth Shankar is a Research Intern at C3S. He is pursuing Master of Arts in International Relations from Manipal Academy of Higher Education (MAHE). The views expressed in this review are those of the author and does not reflect the views of C3S.)

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