As the world becomes more wrapped up with the Global Pandemic, China has been occupied to extend its control over Hong Kong by introducing its Law on Safeguarding National Security. The law was introduced and passed unanimously by Chinese legislation in a very hushed process. The law was brought to ensure the full implementation of the policy of ‘One Country, Two Systems’, administer Hong Kong with a high degree of autonomy, to safeguard national security, to maintain prosperity and stability and protect the lawful rights and interests of the residents of the people of the Hong Kong Special Administrative Region.
Hong Kong was a British Colony until 1997, it was then transferred to China after the Sino-British Joint Agreement. Hong Kong enjoys a special status, which allows it an absolute rule from that of mainland China, including freedom of the press, assembly and, independent judiciary, under the policy of ‘One Country, Two Systems’ forfended for at least 50 years." Under the system, Hong Kong can have its own political, economic systems and liberties that stand in stark contrast to the authoritarian rule in mainland China.
The New Security Law is extreme and punitive. The law imposed on Hong Kong gave Beijing unbridled powers over the city’s internal affairs. It has various features which can drastically affect the economy of the state and also the rights of people. It criminalizes secession, subversion of state power, terrorism and, collusion with foreign entities, carrying the penalty of up to life in prison.
Article 23 of the basic law of Hong Kong empowers Hong Kong to enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies. An attempt was made in 2003 by the Hong Kong officials to bring in the security law but is was later withdrawn due to the mass protests by the people as such provisions would take away the freedom of the people in the city against the Chinese government. Due to the failed attempts of Hong Kong in enacting the provisions on its own, the Chinese government took recourse to Annexure III to the Basic Law under Article 18 and enacted the New Security Law.
The law is so vague and ambiguous, that it can bring any activity into the category of an offence defined under this law. The validity of the provisions of the National Security law has been contrary to the perspective of international laws, like the aspects of the freedom of speech, judicial autonomy and extraterritorial application of the law has been compromised to a great extent, which has been analysed in detail.
CURBING DISSENT AND FREEDOM OF PEOPLE
Article 39 of the basic law provides for provisions of International convention on civil and political rights (ICCPR) that will remain in force in the city. It also stated that restrictions by law cannot be applied on these provisions. Article 4 of the New Security Law also states that the provisions of International Covenant on Civil and Political liberties will remain in force in Hong Kong. However, Article 29(5) of the New Security Law clearly contravenes this provision as it sought to criminalize any criticism or dissent against the Chinese government. The law is so broadly underlined, that it can bring any activity into the category of an offence defined under this law, as stated above. Both Article 27 of the basic law and Article 19 of the ICCPR enshrines freedom of expression to everyone.
The introduction of New Security Law quashed any kind of disagreement and protest in the state. At least 10 people were arrested very next day under the legislation, including a man for having city’s independence flag, a woman for holding a sign calling for Hong Kong’s independence, and a young girl for waving city’s independence flag, according to the Hong Kong Free Press. Article 4 of the Basic Law guarantees freedom of the press but it criminalizes leaking state secrets, a vague broad term that can cover anything deemed to be in the national interest. Article 19 of the Universal declaration on Human rights gives the right to hold opinion without interference and ideas through any media. It guarantees the freedom of expression of people and media. The New Security Law is a tool to crack down on the voice of the people and the media. It is in contravention of Article 28 of the Basic Law which seeks to preserve the liberty of the residents.
The law is also creating a chilling effect, people are deleting their social media accounts. Activists are disbanding their organizations in the wake of the new law fearing that China could use them for persecutions under the new law. The law seeks to expunge and silence opposition to the Chinese rule giving it sweeping power to crack down on dissent.
EXTRA TERRITORIAL APPLICATION
Article 38 of the New Security Law says that it applies to offences committed outside Hong Kong, even by those who are not permanent residents of the region. It has a boundless reach over the other countries. Irrespective of the nationality of a person, the law is applicable to anyone who commits offence against Hong Kong from outside the region. It does not explicitly mention of extradition but the statute would rely a great deal on the process in which the authorities in one country handover the accused of a crime to law enforcement officials in the jurisdiction where charges are filed. Hong Kong has extradition treaty with only 18 countries. However, the New Security Law includes even the citizens of countries that haven’t signed extradition treaty with Hong Kong.
JEOPARDIZING JUDICIAL AUTONOMY
A remarkable feature of the Hong Kong’s basic law is the independence of the Judiciary. In the Sino British Joint declaration an independent judiciary was guaranteed to the city for at least 50 years. Article 85 of the Basic law states that “the courts Special Administrative Region of Hong Kong shall exercise judicial power independently and free from any interference”. Right to fair trial is also ensured by Article 87 of the basic law. However, Article 41 of the New Security Law, on grounds of maintaining public order and state secrets, certain trials can be closed for the public and media. The trial can also be conducted without a jury by a panel of three judges in the court of first instance as stated in Article 44 of the New Security Law. The offenders will face persecution and trial in China under the Chinese criminal system. The committee for safeguarding National Security created under Article 12 of the New Security Law which would monitor the harmony and prosecution of the offenders is not subjected to judicial review of any sort as stated in Article 14 of the New Security Law. All of this has heavily jeopardized the autonomy of Hong Kong.
BREAKING THE BACKBONE OF ECONOMY
The law has also sparked concerns among international governments. The draconian takeover has been condemned around the world with countries warning its citizens to stay away from the troubled region. Australia, Canada and the United Kingdom have suspended their extradition treaty over the new law. The United States has ended the preferential economic treatment to Hong Kong and said that it will be the same as of mainland China. It would be fatal to Hong Kong’s standing as one of the world’s financial centers. Entrepreneurs are restructuring their operations in the city as they fear the implications of running data and internet services under the law’s new regime of vastly expanded policing powers that can impose fine and imprison them if any content is found to endanger the national security. Startups, media and foreign companies are also fleeing as they are afraid to carry out their operations in a city where freedom of expression and rule of law can no longer be guaranteed. The new law has not only strained the international relations of the city but has also devastated its economy.
Such a law has been a long dream for China. The breach of the Joint Sino-British Declaration suggests, China’s ability to disregard laws it sees as against its interests. Article 2 of the basic law gives the city a high degree of autonomy and the executive, legislative and independent judicial power, including that of final adjudication, but it is evident that the law is trying to snatch away the autonomy. This colourable piece of legislation goes against the territory’s mini- constitution curtailing the democratic freedoms enjoyed by the people, thereby turning the city into a police estate. The law is also a disrespect to human rights and is a gross violation of the international laws. Taking away the independence of judiciary, political autonomy and freedom of expression under the vaguely defined law completely destructs the Hong Kong system. The law is a grave and deeply troubling development for the city and is a comprehensive assault on the Hong Kong’s autonomy, rule of law and fundamental freedom.