30 November 2020, NIICE Commentary 6561
Sapna Gupta
The New Security Law of China has got worldwide attention which allegedly has transformed the Hong Kong’s political character. Hong Kong which was going through the democratization process and facing protests and strikes since past few years, has entered in a phase, where a significant political change is occurring. The introduction of New Security Law has undermined the principle of ‘One country, Two systems’ on which the essence of unification of Hong Kong and China lies. This article is an attempt to highlight the arguments which are revolving around and how it has undermined this policy and what exactly this policy means. It starts with the introduction of this New Law and the status of Hong Kong, further it discusses how china has reacted over it.
The passage of New Security Law has permitted mainland China to interfere in the activities of Hong Kong which outlook succession, subversion, terrorism and collision with foreign affairs which undermines the national security as a punishable offence, that will lead to the punishment up to life in prison. This Law gives greater autonomy to the mainland in Hong Kong’s internal affairs which was earlier prevented by the Basic Law of the Hong Kong.
Hong Kong is a special administrative region of China. It became a part of mainland on 1 July 1997 after signing a Sino-British Joint Declaration in 1984, where Beijing has negotiated the assimilation of Hong Kong on ‘One Country, Two Systems’ principle with British. According to which, after the handover of authority, Hong Kong will be governed by its mini-constitution which will be different from Beijing’s, for the next 50 years i.e. 2047. This negotiation has also ensured that socialism which is being practiced in China would not be extended to Hong Kong, as mentioned in article 5 of Basic Law. Hong Kong also enjoys more political liberties than mainland citizens, which is why industrialists, traders, investors and so on who want to trade with China, but have apprehensions about it, find Hong Kong a suitable place.
Political Uprising and Chilling Effect of Security Law
The recent political changes have brought a lot of uncertainties in the region. Hong Kong was going through a phase of social and political uprisings. Protest against extradition bill, rise of Umbrella Movement against the pre-screening of Chief Executive by the hands of Communist Party of China (CPC) and so on has brought attention of the world. But with the passage of this new Security Law, a chilling atmosphere in the politics of Hong Kong can be seen around. People who were protesting on the streets after the introduction of extradition bill for more political liberties and dual universal suffrage for the election of LegCo and Chief Executive and amnesty of arrested protesters etc., have disappeared now, walls which were postered with various demands had been washed off, people have deleted their social media posts and histories related to political motives. Some books have also been purged from the libraries of Hong Kong as this legislation gives the power to mainland to set up the office for safeguarding national security in Hong Kong which will be staffed by mainland Chinese personnel. People, who will be charged under this law, can be handed over to mainland authorities and his entire case from investigation to judgement to punishment will happen there only. Trials can be held in secrets even without a prosecutor of his choice and judges are answerable to the mainland authority.
Criticism and Undermining the Status
Subsequently, this New Security Law got lot of criticism because of its vague interpretation, broad applicability and undermining the policies of one country two system. Vague interpretation in the sense, what can lead to the violation of this law. As when the Hong Kong’s Justice Secretary Teresa Cheng was asked to define exactly what the provision means. She was unable to give a clear answer and broad applicability means any foreign national outside Hong Kong who violates the law can face prosecution under it. Third, because of which, New Security Law has invited worldwide attention. United Kingdom has even considered this law as a breach of Sino-British treaty. As the liberties which was guaranteed in the ‘One Country, Two System’ policy has been overlooked. It has brought a new dimension to the internal politics of Hong Kong.
It has been suggested by many observers that it goes against many enshrined principles of Basic Law. Adding to it, Article 12 of Basic Law reads that the National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial including that of final adjudication. Article 22 gives Hong Kong Special Administrative Region (HKSAR) the right that no central agency can interfere in its internal affairs. China was only entitled to interfere only in the defence and foreign affairs of HKSAR which is mentioned in Annex 3 of Basic Law. However, Article 18 of the Basic law suggests that Chinese National Law can also be applicable in Hong Kong when it is included in Annex 3 of Hong Kong. It was expected by LegCo to make a law on security of Hong Kong, but it never happened due to the lack of consensus on it. The same loophole was used by Beijing and in secrecy this law has been passed without prior information to the residents of Hong Kong.
This new legislation has brought a sea change in the minds of legal experts and observers about the approach of China in handling the political situation of Hong Kong, which it got after suspending the extradition bill. Many legal experts have said that this law will bring a fundamental change to the territories legal system and political environment. International Media industries have also expressed concerns about the laws potential impact on the freedom of Hong Kong. United Nations Human Rights office and expert bodies have shown great concern over it. Amnesty International has even documented it as a step of Chinese authority to jail the journalists, lawyers, scholars and activists of Hong Kong related issues who try to create pro-democratic attitude in the region.
China’s Defence
Different from other’s opinion, Beijing has clarified that this Security Law will supplement the National Law and wouldn’t compete with it. This law will aim to prevent, stop, punish acts and activities which endangers the national security and China opposes the interference in the HKSAR affairs by any foreign or external forces in any form and will take necessary. At a press conference, the Deputy Director of the Chinese government’s Hong Kong and Macau affairs office has said that people in Hong Kong can still criticize the Communist Party of China but cannot turn this into actions. And this will bring the harmony and economic development in the region, which was affected by blockades and protests. However, economic development in this region is solely not the outcome of economic freedom but of liberal environment, it has, which is different from China. Many agencies after the enactment of this law have even shifted their companies. For example, the New York Times has already decided to relocate their staff of Hong Kong to South Korea. Such drainage will definitely affect the economic growth of Hong Kong.
In International politics, Hong Kong has no separate identity from China. It has no independent representation in any world forum. However, it may attend the events of many selected international organizations but it has to be under the name of China. It can only participate in such organisations as an associate member and not as full fledged member State. It has no diplomatic and defence ties with any foreign country and will be an inalienable part of China. However, the ‘One Country, Two Systems’ policy is applicable till 2047. Although, China has clearly stated that after 2047, Hong Kong will cease to be Special Administrative Region, but will it be governed by the its Basic Law or adjustments will be done by the mainland is still not clear. However, the election in the region and the experience of living in a free atmosphere where political liberty was one out of those will surely make a difference. Criticism and political pressure from international community may create some pressure on mainland China but admittedly, this law has given a new direction to the politics of China.
