No consultation: Carrie Lam holds a copy of the new national security legislation. Photo:© JEROME FAVRE/EPA-EFE/Shutterstock

Why Hong Kong's new national security law is a coup dressed up in statute

Be under no illusions as to what this sweepingly-drafted law means: it could catch almost any act of dissent, anywhere in the world
July 11, 2020

The new national security law that Beijing has imposed upon Hong Kong amounts to an alarming legal and ideological takeover. If the drafting is deliberately broad, China’s aggressive ambition is wider still. The stated aim includes safeguarding the “sovereignty, unification and territorial integrity of the People’s Republic of China,” in which Hong Kong is formally a “special administrative region,” run according to its own distinct rules since the British ceded sovereignty in 1997.

But despite claims that the only target of the new law is an “extremely small minority,” within its sweeping remit, a very wide category of persons could be caught. Already, fear and self-censorship are reported among city residents. And as the handover anniversary was marked in July, the promise of autonomy through the “one country, two systems” arrangement was undermined.

It is over a year since mass, largely peaceful protests were triggered by plans to permit extradition to mainland China, which caused fear for fundamental liberties. It took months for Carrie Lam’s Hong Kong administration to U-turn, but by then protesters considered it too late. While a minority, often the young, resorted to violence, police brutality was seen as widespread. Meanwhile, the scale and power of the pro-democracy movement clearly alarmed Beijing.

Such is the fear of what the new law implies that Britain has offered up to three million Hong Kong residents the opportunity to apply for citizenship. Other governments should be under no illusion as to what this law means: it could catch almost any act of dissent—and, thanks to sweeping provisions on extraterritoriality, theoretically anywhere in the world. Hong Kong’s lawyers will need to draw their own red lines, but the scope and interpretation of the law ultimately lies in Beijing.

Today, not only is it a criminal offence in Hong Kong to shout or write slogans pertaining to freedom, but those who seek to resist by holding up blank placards, to avoid repeating the slogans themselves, will also be criminalised. Hong Kong’s Education Bureau has reportedly told schools to remove any books breaching security law. Public libraries are said to be doing the same. There is good reason to fear that Hong Kong has moved quickly towards a ban on all unwelcome political speech.

Many lawyers, activists and international organisations had warned that the new law threatened the freedoms underpinning the whole “one country, two systems” framework, and jeopardised supposedly protected basic rights—to free expression and peaceful protest, and against arbitrary or unlawful detention. Despite—or maybe because of—the concerns, the decision was made to publish the law just an hour before it came into force at midnight on 1st July, without previous discussion (still less consultation). This has left lawyers and journalists gravely concerned. The Hong Kong Bar Association professionally, but markedly, noted the failure to meaningfully consult, adding the “decanting of a mainland law affecting individual rights and obligations into the laws of Hong Kong without it passing through the Legislative Council is a constitutional novelty.”

Woven into these provisions is what one might describe as conspiracy—the fear of foreign interference, and Beijing’s convenient explanations that last year’s protests reflected a foreign hand. An entire section on “colluding” with “external elements” includes a crime of “seriously disrupting the formulation and implementation of laws or policies” by the central or Hong Kong government, as well as engaging in undefined “hostile activities.” It includes “provoking by unlawful means hatred among Hong Kong residents towards the Central People’s Government or the Government of the region.”

All this seems squarely aimed at foreign “meddling,” not only by states but NGOs and civil society. New structures are empowered to “take necessary measures to strengthen the management of and services for organs of foreign countries and international organisations.” This threatens the free press and appears designed to isolate dissidents. Human rights are paid lip service, but the devil may lie in the absence of detail.

Fair trials are threatened. The warning not to make any statement or behave in a manner endangering national security could have a chilling effect on the independence of the judiciary. As so often, the banner of “national security” can be used to cover wide-ranging conduct. The confirmation that trials may—in murkily-defined circumstances—take place on the mainland, or using mainland prosecutors or courts, provokes dark fears. So too do potentially secret trials, and barely-coded warnings aimed at defence lawyers within the text itself.

The Implementing Regulations published by Lam’s craven government are a stark reflection of Beijing’s intentions, including on digital surveillance. They grant alarmingly wide police powers: covering search, seizing and freezing of assets, and such sweeping authority over the flow of information online that the tech giants have suspended their co-operation with the Hong Kong authorities on data processing.

Canada has already chosen to suspend its extradition agreements with Hong Kong, and other western democracies may follow in their own national interests. Theoretically, even their citizens are at risk of extradition to mainland China for alleged offences. After fears of that extradition process triggered the protests last year, those threats have come full circle.

The dangerous haze of this law is an invitation to capricious rule. The consequences are as yet unclear, and lawyers will fight for the city’s embedded rule of law and freedoms, but the terrain looks rough ahead. Tweeting #StandingWithHongKong in solidarity may now itself be a crime for any of us. Which is all the more reason to stand firm with its people.

Schona Jolly QC is Chair of the Bar Human Rights Committee of England and Wale