Hong Kong’s national security law: 10 things you need to know
On 30 June, China’s top legislature unanimously passed a new national security law for Hong Kong that entered into force in the territory the same day, just before midnight. The law is dangerously vague and broad: virtually anything could be deemed a threat to “national security" under its provisions, and it can apply to anyone on the planet.
The Chinese authorities forced the law through without any accountability or transparency: it was passed just weeks after it was first announced, bypassing Hong Kong’s local legislature, and the text was kept secret from the public and allegedly even the Hong Kong government until after it was enacted.
Here are 10 reasons why everyone should be worried about this new law:
“Endangering national security” can mean virtually anything
Under this new law “secession”, “subversion”, “terrorism” and “collusion with foreign forces” incur maximum penalties of life imprisonment. But these offences are so broadly defined they can easily become catch-all offences used in politically motivated prosecutions with potentially heavy penalties.
The United Nations human rights office and expert bodies have already repeatedly expressed concerns about the national security law, stating the broadly worded legislation can lead to “discriminatory or arbitrary interpretation and enforcement which could undermine human rights protection”.
The central and Hong Kong governments have long accused individuals and civil society organizations of being steered by “foreign forces” in their activities, such as organizing and attending peaceful protests, receiving donations and criticizing the government. Anyone who participates in these activities is now potentially at risk of being charged for “colluding with foreign forces” and other new “crimes”.
On the mainland, Amnesty International has documented the Chinese government’s routine use of “subversion” charges to jail journalists, lawyers, scholars and activists. In 2017, a court in China sentenced dissident Wu Gan to eight years’ imprisonment, citing his criticism against the government on the internet as proof of “subversion” of state power.
The law has been abused from day one
Immediately after the law’s passage, authorities started to use it to crack down on legitimate and peaceful expression.
People were arrested for possessing flags, stickers and banners with political slogans. Police and officials have also claimed that slogans, T-shirts, songs and pieces of white paper could endanger national security and lead to criminal prosecution.
Two days after the law was passed, the Hong Kong government declared that “Liberate Hong Kong, the revolution of our times”, a common political slogan during last year’s protests, “connotes ‘Hong Kong independence”, or separating Hong Kong from China, and effectively forbade its use.
These examples show how the law and its usage contravene international human rights laws and standards. These stipulate that peacefully expressing one’s opinion about political systems does not constitute a threat to national security.
The law tightens controls over education, journalists and social media
In the name of national security, the law gives the Chinese central and Hong Kong governments new expansive powers to oversee and manage schools, social organizations, media and the internet in Hong Kong.
The media industry has expressed concerns about the law’s potential impact on press freedom in Hong Kong. The New York Times, for example, has already decided to relocate some of their Hong Kong staff to South Korea.
Many worry that measures similar to those in mainland China will be rolled out to control foreign journalists. Currently, journalists must obtain accreditation from the Chinese government before they can legally work in mainland China.
The Hong Kong government has also attempted to excessively restrict the rights of students to enjoy freedom of expression on campus. The local Secretary of Education said students should not sing songs, chant slogans or conduct activities that contain political messages. Even discussing political issues in classrooms could now create risks.
The law also gives law enforcement agencies the power to remove online content or obtain user data without a judicial warrant. In response to these new and unfettered executive powers, major online platforms such as WhatsApp, Twitter, LinkedIn, Facebook and Google have suspended processing requests from the Hong Kong government for user data.
People could be taken to mainland China for unfair trials
Under the national security law, suspects could be removed to mainland China, handled within the mainland’s criminal justice system and tried under mainland law. This is the same prospect that sparked the series of large-scale protests from mid-2019.
Being charged with a national security crime on the mainland can lead to arbitrary or even secret detention. Those charged might not be able to contact their families and might be left without access to lawyers of their choice if they are placed under “residential surveillance in a designated location“ – a measure that enables investigators to hold individuals outside the formal detention system for periods up to six months. As is often the case, detainees held in this way are at great risk of torture and other ill-treatment. Human rights lawyer Li Heping was beaten, drugged and subjected to electric shocks when he was secretly detained during the 2015 lawyers’ crackdown.
The law applies to everyone on the planet
The wording of the Hong Kong national security law asserts jurisdiction over people who are not residents of Hong Kong and have never even set foot there. This means anyone on Earth, regardless of nationality or location, can technically be deemed to have violated this law and face arrest and prosecution if they are in a Chinese jurisdiction, even for transit. Accused foreign nationals who don’t permanently reside in Hong Kong can be deported even before any trial or verdict.
Social media companies, for example, can be asked to remove content deemed unacceptable by the Chinese government, even if these were posted outside of Hong Kong or if the companies’ offices and servers are located in other countries.
The investigating authorities have new and extensive powers
Under the new law, investigating authorities can search properties, restrict or prohibit travel, freeze or confiscate assets, censor online content and engage in covert surveillance, including intercepting communications all without a court order.
The authorities can also require information from organizations and individuals, even if the information in question may be self-incriminating. Anyone failing to comply can be fined or imprisoned. This essentially removes for national security cases a person’s right to silence, an essential component of the presumption of innocence.
The rights to remain silent under questioning and not to be compelled to testify against oneself are generally recognized in international human rights law and standards and lie at the heart of the notion of a fair trial. They are broad, apply during questioning by the police and trial and for any crime, regardless of severity, and prohibit any form of coercion, whether direct or indirect, physical or psychological.
The Chinese government now has a national security arm in Hong Kong
The Chinese central government is setting up an Office for Safeguarding National Security in the heart of Hong Kong. The office and its staff do not fall under Hong Kong’s jurisdiction. This means any actions, including their operation in the city, are not reviewable by local courts or subject to local laws. Office personnel are not subject to inspection, search or detention by local law enforcement in Hong Kong. The office and its staff in effect enjoy complete immunity, regardless of what crimes or human rights violations they are accused of, in violation of the victims’ rights to justice, to establishment of the truth and to receive full reparations.
Mainland China’s national security officers have routinely violated the rights of individuals facing national security charges with impunity. These agencies systematically monitor, harass, intimidate and detain human rights defenders and dissidents, with evidence of torture and other ill-treatment.
The Hong Kong government also has a new body that is not subject to oversight
The Hong Kong government has set up another new body, the Committee for Safeguarding National Security, with a delegate from the Chinese central government to “advise” it.
The committee has the power to hand-pick personnel in law enforcement and prosecution to handle national security cases. Budget and appointment of personnel related to safeguarding national security will also bypass legislative scrutiny. The Chief Executive can appoint judges to handle national security cases in a way that appears to undermine judicial independence.
Under the new law, the committee does not have to disclose its work. Decisions made by the committee are not subject to review by the courts.
In addition, the Hong Kong Police Force has established a new national security division that can conduct covert surveillance without judicial control.
This arguably means the public cannot use legal procedures as a check against abuse of power and breaches of Hong Kong’s legal obligations, including human rights obligations under international and domestic law.
Human rights protections risk being overridden
Although the national security law includes a general guarantee to respect human rights, including core human rights treaties like the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, other provisions in the law could override these protections.
The law grants immunities and vast exemptions to the national security institutions and their personnel and in fact states explicitly that it trumps any Hong Kong laws in case of conflict. This means that, on the face of it, the national security law could be seen to negate any existing human rights protection in the territory.
China’s own national security law has a similar provision on respect for human rights, yet this has provided little or no protection to people targeted: there are lawyers, scholars, journalists, pastors and NGO workers who have all been convicted of national security offences simply for exercising their freedom of expression and defending human rights.
The Hong Kong Chief Executive has repeatedly justified limiting human rights in the name of national security, including in ways that would violate international standards.
The law has already had an immediate chilling effect
This draconian law is so vague it prevents anyone from knowing how and when they might transgress it and has consequently had an instant chilling effect across the territory.
Many Hongkongers who were regularly sharing news online about the protests since June 2019 have shut down their social media accounts for fear of violating the law. Shops and restaurants that had previously posted banners and stickers in support of the protest movement removed them even before the law was in force. Within days, public libraries started to sort out books on “sensitive” issues and authored by activists critical of the government.
One hour after the law passed, prominent activist Joshua Wong withdrew from Demosisto, the pro-democracy group he led. Later, Demosisto announced its disbandment, and another key member, Nathan Law, announced that he had left Hong Kong. Law was worried that continuing his international advocacy work in Hong Kong could pose an imminent threat to his personal safety.
Within one week after the enactment of the law, at least seven politically active groups disbanded.
The Hong Kong national security law has failed to genuinely protect national security while safeguarding human rights. The consequences are grave – the undefined nature of key aspects of the law has created fear among people in Hong Kong, as no one knows what may constitute an offence of “endangering national security” and, hence, put them at risk of criminal prosecution, removal to the mainland or deportation from the territory.
It is recognized that every government has the right and duty to protect its citizens and that some countries have specific security concerns. But these may never be used as an excuse to deny people the right to express different political views or to exercise their other human rights as protected by international legal standards. It is quite clear that the Hong Kong national security law is another example of a government using the concept of “national security” to repress political opposition, with significant risks for human rights defenders, critical media reporting and civil society at large.