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Hong Kong’s security law

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This Strategic Comment was originally published in July 2020.

China has imposed a security law on Hong Kong that specifies severe penalties for what Beijing deems to be secession, subversion of state power, terrorist activities and ‘collusion with foreign or external forces to endanger national security’. Beijing is determined to bring Hong Kong to heel, whatever the international repercussions. In the long term it is likely that Beijing will progressively eliminate all vestiges of Hong Kong’s separate identity along with all remnants of the territory’s colonial past.
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On 22 May, China announced that its national legislature, the National People’s Congress, would enact an anti-subversion law for Hong Kong, since Hong Kong’s own Legislative Council had proven unable to do so. China’s decision was widely condemned as a breach of the Sino-British Joint Declaration, an international treaty signed in 1984 and deposited with the United Nations, which guaranteed Hong Kong a high degree of autonomy following its reversion to Chinese sovereignty in 1997. Yet despite this condemnation, the possibility of United States sanctions and the certainty that there would be fresh protests in Hong Kong, China was not dissuaded. The law was passed and approved in Beijing on 30 June, and came into force immediately. This development may well signal the beginning of Hong Kong’s transition towards becoming just another Chinese city rather than one that enjoys its current exceptional status.

Growing Tensions

Prior to the 1997 transfer of sovereignty the Chinese government drafted the Basic Law, which was to serve as the constitution for the Hong Kong Special Administrative Region (SAR). Article 23 of the Basic Law stated that ‘Hong Kong shall enact laws on its own to prohibit any act of treason, secession, sedition [or] subversion against the Central People’s Government’. Similar legislation would be enacted in the former Portuguese colony of Macao without occasioning adverse comment, though this distinction reflected the reality that Macao not only lacked Hong Kong’s status as a global business and financial centre but also had come under de facto Chinese control long before the formal transfer of sovereignty in 1999.

During the colonial era, Hong Kong had had no specific legislation dealing with subversion and secession. Prior to the transfer of sovereignty, the British colonial administration had sought to enact legislation that would define them purely in terms of acts of violence, but in the face of strenuous Chinese objections it was obliged to back down, leaving a legislative void. The first attempt to introduce such legislation, in 2003, was abandoned in the face of large-scale peaceful protests and the issue was subsequently shelved.

It returned to prominence following the Hong Kong SAR’s attempt in 2019 to introduce legislation that would enable criminal suspects to be extradited to jurisdictions with which Hong Kong had no extradition treaty – including China. Fearing that this new law might allow the extradition of people accused by China of political crimes, large portions of Hong Kong’s population participated in protests that were at first peaceful but gradually became more violent, eliciting an increasingly violent response from the Hong Kong police. The crisis required a political response that the SAR administration, composed of civil servants, proved incapable of providing. In any case, SAR Chief Executive Carrie Lam acknowledged reality when she described herself as having to ‘serve two masters’ and having ‘very little’ room for manoeuvre. It became evident that Beijing was unwilling for the legislation to be shelved, much less to accede to the other demands of the protesters, which included Lam’s resignation (reportedly offered), the withdrawal of the designation of protesters as rioters, an independent inquiry into police conduct, and an amnesty for all arrested protesters. Protesters had written their own anthem, ‘Glory to Hong Kong’, and paraded with slogans such as ‘Recover Hong Kong, Revolution in Our Time’; some even called for Hong Kong’s independence from China.

The view from Beijing

For China, the whole episode was hugely unwelcome, coming as it did at a time of domestic economic slowdown and growing tensions with the US over trade and geo-strategic influence. Beijing’s discomfiture was exacerbated by Hong Kong’s local elections in November 2019, in which pro-democracy politicians took control of 17 out of 18 district councils, tripling their number of seats at the expense of veteran pro-Beijing politicians.

For Beijing, events in Hong Kong also had significant adverse repercussions for Taiwan’s presidential election in January 2020, in which the incumbent Tsai Ing-wen – who had been trailing in the polls – was returned to office with a substantial majority, largely due to Taiwanese outrage and alarm at the attempted suppression of Hong Kong’s protests. In response to Tsai’s victory, the opposition Kuomintang party publicly repudiated its long-standing support forthe so-called ‘1992 consensus’, according to which both sides of the Taiwan Strait were acknowledged to be part of ‘One China’, with each side having its own interpretation of what ‘One China’ was. Beijing considered this acknowledgement to be a basis on which Taiwan could be reunified with the mainland under the ‘One Country, Two Systems’ formula. Given events in Hong Kong, ‘One Country, Two Systems’ is now almost certainly a dead letter, and the prospects for an eventual peaceful unification of Taiwan with the mainland seem increasingly slim.

‘Given events in Hong Kong, ‘One Country, Two Systems’ is now almost certainly a dead letter, and the prospects for an eventual peaceful unification of Taiwan with the mainland seem increasingly slim.’

Beijing had resorted to extensive propaganda campaigns that sought to equate Hong Kong’s protesters with terrorists and blamed foreign ‘black hands’ for instigating what was termed a colour revolution. It also publicly pressured business leaders in Hong Kong to distance themselves from the protesters. Beijing’s propaganda offensive – conducted with the aid of bots on Western social-media platforms – was effective in mainland China, where the Party-state could appeal to carefully nurtured nationalist sentiment, and to some degree among Chinese diaspora communities. Other countries, including Western liberal democracies, were not persuaded. The US Congress passed the Hong Kong Human Rights and Democracy Act, which required the executive branch to testify to Congress that Hong Kong continued to enjoy a high degree of autonomy, and therefore opened the way to sanctions against China if this were found not to be the case.

Following the fiasco of the Hong Kong elections, China replaced its two top officials responsible for the SAR – Wang Zhimin, director of the Liaison Office of the Central People’s Government in Hong Kong, and Zhang Xiaoming, director of the Hong Kong and Macao Affairs Office. Their respective replacements, Luo Huining and Xia Baolong, had no experience of Hong Kong and were enforcers rather than conciliators. Luo had previously served as Party Secretary in Qinghai, where he had imposed restrictive controls on the province’s Tibetan minority communities; and Bao as Party Secretary in Zhejiang, where he had repressed the province’s large Christian communities. Luo was quick to make clear that, in the light of the disturbances of the preceding months, anti-subversion legislation was now an imperative. Hong Kong’s Legislative Council, however, was gridlocked due to filibustering by pro-democracy legislators and therefore unable to take any action. China then decided to force the issue.

The security law

The legislation’s details were released late on 30 June. Its focus is on secession, subversion of state power, terrorist activities and ‘collusion with foreign or external forces to endanger national security’. Under the legislation, a new Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region will be established to analyse the national-security situation in Hong Kong and offer advice on strategies and policies. Hong Kong will be required to establish a Committee to Safeguard National Security, chaired by the chief executive and including a national-security adviser appointed by Beijing. Dedicated units will be set up in the Department of Justice and the police to deal with national-security cases, and judges will be appointed by the chief executive to hear cases – with the exception of those deemed particularly egregious, which will be heard in the mainland.

The legislation also paves the way for China’s intelligence and security agencies to have a formal presence in Hong Kong, with authorisation to undertake whatever operational activity they deem necessary. These agencies have maintained a substantial presence in Hong Kong through a variety of official and non-official covers since well before 1997, and have latterly become more active. Hong Kong itself has minimal intelligence-collection capabilities. During the colonial era, intelligence and security was the preserve of the Hong Kong Police Special Branch, a large and well-resourced organisation that benefitted from extensive collaboration with the Five Eyes intelligence community. But before the reversion of sovereignty the Special Branch was closed down, to eliminate the risk that it might be repurposed for internal repression. Its successor organisation,the Hong Kong Police Security Wing, had limited capabilities and was focused primarily on foreign-intelligence issues such as the proliferation of weapons of mass destruction, in which Hong Kong sometimes featured owing to its role as a trading hub.

In future it is likely that the Hong Kong police will receive much more intelligence from China and be expected to act on it under Chinese direction. This is a particular concern in relation to the provision in the draft legislation relating to ‘collusion with foreign or external forces to endanger national security’. China’s definition of national security is much broader than that of most liberal democracies and can extend to commercial decisions by private-sector corporations that Beijing considers inimical to Chinese interests. Meanwhile, the activities of civil society and human-rights groups are likely to come under greater scrutiny and pressure. Both Beijing and the SAR government have sought to allay concerns about the new legislation by emphasising that it will only apply in a small minority of cases. Few are convinced that this will be the case. Lam perhaps made a Freudian slip when she observed that Hong Kong people would continue to enjoy freedom of expression – ‘for the time being’. On the news that Beijing had passed the security law on 30 June, one of Hong Kong’s more prominent pro-democracy groups announced that it would disband. The first arrests under the new law were made the following day, targeting pro-democracy protestors.

‘It is likely that the Hong Kong police will receive much more intelligence from China and be expected to act on it under Chinese direction.’

International reaction

China’s decision to force the issue of anti-subversion legislation has attracted significant condemnation from Western liberal democracies, but it is unclear whether they will take any effective action in response. In some cases, such as that of the European Union, the reaction amounted to threats that China would face serious consequences if it proceeded with the legislation. But given Europe’s internal divisions over policy towards China, these threats were largely meaningless. The G7 limited itself to urging China not to proceed. As a signatory to the Joint Declaration, the United Kingdom has a formal responsibility to ensure that Hong Kong’s high degree of autonomy is maintained, although China increasingly disputes this. In practice the UK’s options are limited. Its most significant move has been to announce that, if the anti-subversion legislation is enacted, it will alter its immigration policy to enable the three million Hong Kong residents born before 1997 to apply for British National (Overseas) passports, which confer the right to move to the UK and ‘pursue a path to citizenship’. These passports were a device conceived by the UK to encourage Hong Kong’s elite to remain there after 1997 by offering them an escape route if things turned out badly. As originally conceived, however, they did not confer the right to reside in the UK and they are unavailable to those born after 1997, who account for a sizeable proportion of the recent protesters. Moreover, they were never recognised by China.

Of greater potential significance for Hong Kong’s future is Washington’s reaction. US Secretary of State Mike Pompeo has testified to Congress that Hong Kong no longer enjoys a high degree of autonomy, and President Donald Trump has announced, without going into detail, that he would end the US special relationship with Hong Kong, a move that would affect ‘the full range of agreements … from our extradition treaty to our export controls on dual-use technologies and more, with few exceptions’. The Trump administration has issued visa restrictions against Chinese officials involved in ‘undermining Hong Kong’s … autonomy’, although so far this step appears largely symbolic. On 26 June the US Senate passed a bill, the ultimate fate of which remains uncertain, that would also sanction banks and state entities connected to such officials. Washington has taken the first steps towards potentially fully revoking Hong Kong’s special status, announcing on 29 June that it would ban the export of arms or sensitive technology to Hong Kong, and that ‘further actions to eliminate differential treatment are also being evaluated’.

The extent of Washington’s response remains to be seen. In 1992 the US passed the Hong Kong Policy Act, which, interalia, recognised Hong Kong as a separate customs territory and guaranteed the US dollar peg. The US could declare this legislation null and void on the grounds that Hong Kong no longer enjoys the high degree of autonomy presumed when the legislation was enacted. In that case Hong Kong would pay the same tariffs as China on its exports to the US – not a particularly heavy burden given that the overwhelming majority of goods sent from Hong Kong to the US are re-exports rather than indigenous manufactures –and the Hong Kong dollar would suffer a speculator-led collapse. This decision would also diminish China’s ability to develop Hong Kong as a technology hub (in the hope of sidestepping US technology sanctions) and to maintain Hong Kong as a global financial centre. It would also have a substantial impact on the Hong Kong-based financial and real-estate assets of the Chinese Communist Party nomenklatura – though President Xi Jinping, who has sought to reduce the considerable amount of Chinese capital flight to Hong Kong and has made clear that houses are for living in and not for speculation, may not be unduly concerned by this latter risk.
Outlook

Beijing appears to be betting that, with the West divided, in disarray and impoverished as a result of the COVID-19 pandemic, there will be no appetite to damage Hong Kong’s continued standing as a global financial and business centre offering easy access to the Chinese market. This reflects a general mindset that, like it or not, the world will need to learn to deal with Chinese on China’s terms. Ever fearful of the threat of internal instability, China’s leaders view Hong Kong as a cancer that must be cut out before it metastasises to the mainland. The 2019 protests humiliated China’s leadership and left it angry, vengeful and determined to bring Hong Kong to heel – whatever the cost. At the very least, Hong Kong has been warned that its continued exceptional status will be dependent on its readiness to accede to Beijing’s demands. That exceptional status will henceforth be more illusory than real, at least as concerns political and civic freedoms. In the long term it is likely that Beijing will progressively eliminate all vestiges of Hong Kong’s separate identity along with all remnants of the territory’s colonial past.

‘Ever fearful of the threat of internal instability, China’s leaders view Hong Kong as a cancer that must be cut out before it metastasises to the mainland.’
Editor: Paul Fraioli Guest Editor: Benjamin Rhode

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