Hong Kong national security law

After the Tiananmen Square massacre in 1989, with Hong Kong residents concerned over their civil liberties, the Societies Ordinance was reviewed; it was amended in 1992, relaxing some of the restrictions against being able to register some societies,[10] but this was repealed after the handover in 1997. According to the Hong Kong Human Rights Monitor (HRM), China amended the ordinance in 1997 "as part of a package of China's effort to emasculate the Hong Kong Bill of Rights".[6] The 1997 amendments include the proviso that should the relevant officials "reasonably believe" that prohibiting a society "is necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others", it can be escalated and banned without evidence.[6] HRM said that:

The use of the term "national security" is particularly objectionable because the concept has frequently been used in China to criminalise the peaceful exercise of the rights of expression and to persecute those with legitimate demands like democracy and human rights. Its inclusion raises fears of extension of such Mainland Chinese practices to Hong Kong especially in the light of Article 23 of the Basic Law.

— 1997–98 Memorandum submitted by the Hong Kong Human Rights Monitor, Appendix 5, paragraph 136[6]

The international response to this 'national security law' was to invoke the Siracusa Principles, which says that national security "cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order", only against outside threats.[6] International jurists declared that including 'national security' in the ordinance dealing with local societies was unwarranted and inappropriate because "it is difficult to suggest that a society or a demonstration in Hong Kong will threaten the existence of China", and any local threat can be handled with regular public order laws.[6] Despite this, the 'national security' ground was introduced. While "national security" was defined as "safeguarding of the territorial integrity and the independence of the People's Republic of China", there was no explanation of what constituted a threat to this, nor how it should be implemented.[6]

In December 1996, the Hong Kong Legislative Council (as part of the British colonial government) introduced the Crimes (Amendment)(No.2) Bill 1996.[11] The catalyst for introduction was the forthcoming handover, with the initial amendments being mostly technical and removing reference to the monarchy. In turn, it sought proposals to change the articles on treasonable offences.[5] This bill would have amended the Crimes Ordinance, changing sedition legislation that had existed since 1971 and was described by Hong Kong as "archaic".[7] Specifically, the bill proposed legalising dissent of the government, with the council declaring that the existing ordinance "[was] contrary to the development of democracy [as it] criminalizes speech or writing and may be used as a weapon against legitimate criticism of the government".[7] The bill failed as it was strongly opposed by Beijing, leaving a gap in national security legislation.[11]

A "scaled-down" version of the Crimes Ordinance amendment was pushed through.[7] It gave a more limited definition of "sedition" and increased territorial defences; it was signed by Hong Kong Governor Chris Patten days before the 1997 handover, but was quickly discarded by the Chinese before it could ever come into effect.[7]

Tung Chee-hwa was responsible for Hong Kong's failed legislation attempt. Protests in June and July 2003 were in part due to the economic downturn after, and mishandling of, the 2002–2004 SARS outbreak.[12]

In September 2002, the Hong Kong government released its "Proposals to Implement Article 23 of the Basic Law" Consultation Document. Consultation lasted until December 2002, being concluded early after protests drew tens of thousands of people against the proposal; concessions were made, but the proposals did not return to public consultation.[11] The National Security (Legislative Provisions) Bill 2003 was introduced in February 2003, aiming to comply with the requirement under Article 23 that the Hong Kong government should enact national security legislation "on its own". However, the bill was abandoned due to overwhelming opposition, noting the then-unprecedented number of protesters.[13][14]

The 2003 bill would introduce sedition legislation, as well as offer amendments to the ordinances. While the Region was being encouraged to create legislation in line with the Johannesburg Principles, it did not, and the 2003 provisions would have been more restrictive of civil liberties. The changes were to narrow the definition of "sedition", requiring someone to deliberately commit acts against the government; to add a 'likelihood' clause, requiring a burden of proof; and to add subversion and secession offences.[7] This last addition was the most problematic part of the bill, with the others seen as steps towards protection. The subversion and secession legislation would make it illegal to threaten the presence and stability of the People's Republic of China (PRC) under laws handling treason and war, and also used vague and undefined terms that left the legal threshold for prosecution unclear.[7]

Though the bill had been introduced in February 2003, Asia was experiencing the SARS epidemic, and major protest towards it did not happen until Hong Kong recovered at the start of June. In June 2003, the pro-democracy camp mobilised the public to oppose the bill, and on 1 July, the sixth anniversary of the handover, more than a half million Hong Kong residents took to the streets against then-Chief Executive Tung Chee-hwa and Secretary for Security Regina Ip, who was in charge of the bill.[11] In the evening of 6 July, Liberal Party chairman James Tien decided to withdraw from the "governing coalition" by resigning from the Executive Council in protest. Knowing that the bill would not be passed without the Liberal Party, the government finally decided to postpone it, before it was shelved indefinitely.[11]

Pro-Beijing Hong Kong politicians have spoken about the proposed law since independence movements grew in Hong Kong. When China announced that "[Beijing] will absolutely neither permit anyone advocating secession in Hong Kong nor allow any pro-independence activists to enter a government institution", then-Chief Executive Leung Chun-ying said Hong Kong would enact a security law targeting pro-independence movement in Hong Kong.[15] In 2018, director of the Liaison Office of the Central People's Government in Hong Kong Wang Zhimin urged the Hong Kong government to enact national security legislation as he said "Hong Kong is the only place in the world without a national security legislation – it's a major weakness in the nation's overall security, and it has a direct impact on residents".[16]

The National People's Congress decision on Hong Kong national security legislation authorises the NPCSC to enact laws for "a sound legal system" in the territory.[18][21] An NPCSC deputy claims that the Article 23 legislative provisions still have to be passed by August 2021.[22]

After the passage of the decision, Hong Kong citizens began looking for ways to emigrate and leave Hong Kong, feeling that the law would fundamentally damage their rights of expression and freedom. Ten times the usual number of web searches about emigration were recorded after the decision was announced.[23] Following the British BNO announcement, a spike in interest in properties in the United Kingdom, Australia, and Canada occurred.[24][25]

Chinese plans for the legislation include most prominently criminalising "separatism, subversion, terrorism and foreign interference", which many interpret as a crackdown on civil liberties, government critics, and the independence movement.[19] China also plans to implement an intelligence service in Hong Kong under the law, using the PRC's own Ministry of Public Security police force that currently has no power or influence in Hong Kong. Various national governments expressed concern that the Chinese plans would undermine Hong Kong autonomy and the One country, two systems policy. The NPC approved the Chinese plans on 29 May 2020, with state media outlet People's Daily declaring that the approval "sends a strong signal [...] to anti-China forces in Hong Kong desperately fighting like a cornered wild beast: your defeat has already been decided".[19]

After gatherings marking the one-year anniversary of the extradition law protest movement on 8 June 2020, Zhang Xiaoming, the recently-demoted deputy director of China's Hong Kong and Macau Affairs Office, said that the national security law would only give Hong Kong residents more freedom, saying: "They can be free from the fear of violence. They can ride the train and go shopping freely. They can speak the truth on the street without the fear of being beaten up. In particular, they no longer have to worry about young people being brainwashed."[26]

Carrie Lam has refused to rule out that the law could be applied retroactively.[27] The Global Times, controlled by the People's Daily, suggested that past tweets from the pro-democracy Hong Kong businessman Jimmy Lai may be used as evidence to prosecute Lai under the law. Former Chief Executive CY Leung also suspects it may be used to ban Tiananmen Square vigils.[8] On 10 June 2020, Hong Kong police began "establishing dedicated unit to enforce the new law", which had not been formally announced at that point;[3] the next day, the British government revealed that an outline of the Chinese legislation "includes provision for the authorities in Hong Kong to report back to Beijing on progress in pursuing national security education of its people".[28]

While Hong Kong's public universities have publicly supported the law and said it will not affect academia and research, scientists in the territory fear that China's censorship of COVID-19 research publication will be extended to Hong Kong under the law. They also express concern that Hong Kong will likely be stripped of international funding within academia. A further worry within the field is the growth of self-censorship as a defense response to fear of being punished for "publishing research that could upset the central government", citing unsuccessful trials as something that could harm market prospects, making scientists fear continuing to work at all.[29] One dean, speaking to Nature in June 2020, insisted the law would not affect publishing, but did acknowledge that access to US data would become restricted.[29]

On 15 June 2020, the 30th anniversary of the Basic Law being officially enacted, Beijing announced that the Chinese government reserved the right to deal with cases under the national security law, expecting the number to be low and in "very special circumstances", and that a mainland security office is to be opened in Hong Kong as a demand of the government.[30] The government refused to qualify what the exceptional circumstances may be, leading to fears that the law will be used to arrest critics of Beijing and then have them extradited to the mainland for prosecution. As well as the new mainland security office, Hong Kong must allow Chinese security agencies to operate in the region when needed, and accept that Chinese agencies "will supervise and guide the Hong Kong government".[30] With firm details released by the Chinese government for the first time, SCMP expected that the law may be passed through the NPCSC by the end of the week.[30] Controversy had already erupted the day before, after police arrested a teenage schoolgirl for protesting by using a knee to pin her neck to the ground, with another officer pinning her at the waist. This drew comparisons to the Death of George Floyd and prompted questions about the use of force on a non-violent minor.[31]

Chinese vice premier Liu He meeting with US president Donald Trump in May 2018.

Dr. Brian Fong, a political analyst in Hong Kong-Chinese relations,[32] explains that the move is a dramatic change in Chinese policy, and a risky one that could lead to Beijing "losing access to foreign capital and technology through Hong Kong".[3]

The American (United States) diplomat of Asian affairs Daniel R. Russel wrote in The Diplomat on 3 June 2020 that China was "fully aware of both the local and the international reaction it could expect" when the NPC passed its decision about the legislation.[33] Russel explained that the reaction in 2003, the 2019 protests, and some US sanctions favouring Hong Kong over China set the baseline for response to the decision. He also noted that China's reputation was already low internationally because of the COVID-19 pandemic (noting that, "ironically", it was in the same position as in 2003 with SARS and the legislation), especially in the US where "public attitudes toward the other nation have taken a sharp turn for the worse" because of the pandemic that originated in China.[33] However, he added that Beijing had at the time an "increased level of resolve [and] tolerance for negative consequences"; he wrote that forceful economic action from the US may prompt China to retaliate with military action in Hong Kong, suggesting that both nations have a disregard for the territory if it can be used for benefit in their trade war and warning that "Hong Kong may be martyred in the process".[33]

Sir Malcolm Rifkind, British Foreign Secretary at the time of the handover, said in June 2020: "China does have an Achilles' heel when it comes to Hong Kong. If China pushes too far with what they are seeking to do, they will not absorb a prosperous significant financially important Hong Kong into the body of China. They will be left with a hollow shell".[28]

On 9 June 2020, The Guardian's China specialists Tania Branigan and Lily Kuo published a report titled "How Hong Kong caught fire: the story of a radical uprising". In it, they wrote that "the nature of [China's involvement] is as alarming as its content: it sets a precedent of Beijing forcing unpopular legislation on Hong Kong", in open defiance of the handover terms.[27] They also look at the approach of the law, explaining that Beijing has given "material security in place of political freedoms" to its people in China, and plans to do the same in Hong Kong because it sees all issues as purely economical and protests only escalating because of "troublemakers and hostile foreign powers".[27] In terms of how it is being executed, the pair assert that in 2020, "Beijing has abandoned any pretence of winning hearts and minds", instead using force to prevent democracy politicians and activists from having platforms, which Branigan and Kuo say is a plan to use fear to suppress Hong Kong, as "persuasion" has not worked.[27]

China's legal basis for involvement comes from the Chinese constitution declaring Hong Kong part of China, and Article 18 of the Hong Kong Basic Law allowing for Chinese laws to be valid in Hong Kong if they are included in Annex III. Deutsche Welle (DW) expects that the NPCSC national security law will stand as a Chinese national law that applies to Hong Kong, as it will be added to Annex III; Dang Yuan wrote for DW that "Beijing wants to maintain the appearance of Hong Kong's autonomy and continues to insist that Hong Kong pass its "own" corresponding law" in alignment with the NPCSC legislation.[34] DW wrote that China chose mid-2020 as the time to intervene with a restrictive law because of the likelihood of a democratic majority winning in the Hong Kong elections in September, meaning another Hong Kong attempt at a national security law would be unlikely.[34]

Hong Kong residents generally opposed the Chinese proposals. The prospect of any national security law has always been unpopular, but protestors in 2020 said that the new proposals "strikes at the heart of Hong Kong's civic political identity, its success as an international hub. But most of all it strikes at people's sense of belonging".[3] Though opposing the law, some Hong Kongers are expectant of it in hopes that it will cause China's downfall when other nations financially retaliate; though Hong Kong would also be fractured, they believe the only path to freedom is mutually assured destruction, the lam chao doctrine.[3]

The Hong Kong politician Margaret Ng believes that China has wanted to implement a national security law in Hong Kong under their terms for years, and are using the 2019 protests as an excuse, saying that "China has always found it difficult to accept the kind of freedom and restraint to power that Hong Kong has under a separate system".[3] Man-Kei Tam, the Hong Kong director of Amnesty International, described the Chinese legislation as "Orwellian".[35]

The UK, of which Hong Kong is a former colony, encouraged China to back down on the security law per the provisions of the Sino-British Joint Declaration: terms of the UK handing sovereignty of Hong Kong to China included allowing Hong Kong to maintain autonomy and its British-based form of governance.[36] British First Secretary and Foreign and Commonwealth Secretary Dominic Raab explained the British perspective of needing to step in with China violating the Joint Declaration in their attempts to pursue the law.[37] On 3 June, the Chinese government announced that they consider the Joint Declaration to have become void as soon as power was transferred in 1997.[36]

We are not threatening anything. We are just pointing out as a matter of black and white in the joint declaration that China signed that it is in violation, direct violation, of undertakings freely given and we expect – as we expect any member of the international community as they expect of us – China to live up to those responsibilities.

— Dominic Raab[37]

On 2 June both Raab and the Shadow Foreign Secretary Lisa Nandy announced that the UK should set about creating a large international alliance beyond the Five Eyes to pressure China into stepping back on the matter of Hong Kong security, as well as to counter the "pro-China global alliance" that Raab said Beijing had formed to intimidate countries that oppose it.[38] Calls for such an alliance had been voiced on 1 June by seven former Foreign Secretaries of the UK.[39]

The UK produces a Report on Hong Kong every six months, backdated, with one written and published by Raab on schedule on 11 June 2020 (covering the last six months of 2019). In this report, Raab more firmly warns China against interference and reiterates the UK's right to comment on Hong Kong. Raab said that Beijing's "plans to impose new security laws bypassing the Hong Kong legislature are in direct conflict with international law".[28] The report requests that China abstain from interfering in the September elections in Hong Kong, and accuses the Chinese government of torturing a British diplomat, Simon Cheng, who visited the Mainland when working at the British Consulate in Hong Kong.[28] Six days later, the UK said that a new human rights law, which has been stalled in Whitehall for several months, could be used to "sanction Chinese officials if Beijing presses ahead" with the national security law.[40] The British law is to be a form of Magnitsky legislation, for the government to sanction those who commit acts repressing human rights.[40]

Hong Kong protestors flying both the Union Jack and the colonial Dragon and Lion flag in 2019

In late May and early June 2020, members of the British Cabinet also announced measures to provide a route to British citizenship for 3 million Hong Kong residents.[41] On 3 June, Prime Minister Boris Johnson announced that if China were to continue pursuing the law, he would allow Hong Kong residents to claim a British National (Overseas) passport (BNO) and open a path to British citizenship for them. Raab said that the UK would sacrifice trade deals with China in order to support Hong Kong, but that presently it will remain in conversation with the international community on the matter.[37] Chinese foreign minister Zhao Lijian threatened the UK in response, while Hong Kong protestors felt that the British offer did not go far enough.[36] Hong Kong barrister Martin Lee, who helped draft the Basic Law, thought the UK was being generous but said that "no matter how generous you are in the provision of passports and so on, there are still large numbers of people who are not eligible for one reason or another", highlighting the vast number of oppressed protestors who are young people, born after the handover.[41] Lee later called for the UK to take China to International Court of Justice.[42]

Raab had announced at the end of May that the UK were considering extending BNO rights to give right of abode, which Zhao acknowledged would be an internal British policy change, but still claimed China would have "the right to take countermeasures".[19] Raab delivered his proposal to the House of Commons on 2 June, and was ambivalent about whether it would only apply to the current BNO passport holders, telling the Commons: "we have said that we will allow the approximately 300,000-plus passport holders, along with their dependents, to come to the UK".[41] His measure plans to allow BNO passport holders to apply for a visa,[19] remain in the UK for an initial period of twelve months instead of six as previously, allow them to apply to study and work, and thereby provide them a path to citizenship.[43]

Further to Raab's proposal the day before, Johnson's 3 June announcement would cover the approximately 3 million Hong Kong residents born before 1997.[36] He was less ambivalent on whether only people who had applied for a BNO passport before the handover in 1997 would be eligible, writing in The Times:

Today about 350,000 people hold British Nationals (Overseas) passports and another 2.5 million people would be eligible to apply for them. At present these passports allow for visa free access for up to six months. If China imposes its national security law, the British government will change its immigration rules and allow any holder of these passports from Hong Kong to come to the UK for a renewable period of 12 months and be given further immigration rights including the right to work which would place them on the route to citizenship.

— Boris Johnson[41]

The extent of the scheme was clarified on 12 June 2020 by Home Secretary Priti Patel in correspondence with Johnson. All people eligible for BNO status, as well as their dependents, will be allowed to enter the UK under the scheme. Patel expressed that 'dependents' would include partners and any children under 18 – this is criticised for leaving a gap of young adults born after 1997 who will not be able to access the scheme. She did add that Hong Kong residents could start to come to the UK without restrictions while the scheme is still being set up, if the national security law is passed.[40]

Five Eyes intelligence-sharing alliance

The UK held a teleconference with its other former colonial powers in the Five Eyes alliance (the US, Canada, Australia, and New Zealand) in the first few days of June, where they discussed the Hong Kong situation and requested that should the BNO extension go ahead, the other countries would share the burden of taking in Hong Kongers in the resulting exodus. Australia, with strong ties to Hong Kong, did not announce new measures but confirmed that "Hong Kong people can apply for a range of relevant visa categories to work and live in Australia" already.[44] Various political leaders across Australia have called on Prime Minister Scott Morrison to go further and at least formally match the UK's offer.[44]

Foreign ministers from the Five Eyes members and Commonwealth realms of Australia, Canada, New Zealand, and the UK jointly wrote a letter to the United Nations requesting "a new special envoy to monitor the impact of the law on Hong Kong", saying that "the erosion of the rule of law and the increasingly serious and urgent human rights situation in Hong Kong" needed to be addressed, especially noting the Chinese security law proposal came in the week of the anniversary of the Tiananmen Square massacre.[44]

Following persuasion from the UK, all members of the G7, notably including Japan, signed an official statement both urging China to reconsider the national security law and expressing concerns about human rights in Hong Kong on 17 June 2020.[40]

Boris Johnson's stance on Hong Kong is considered firm

Johnson had previously voiced support for Hong Kong autonomy against the proposed extradition bill that incited the protests in 2019.[45] Johnson is seen as taking a more forceful approach to Hong Kong autonomy than former Prime Minister David Cameron; The Guardian's diplomatic editor Patrick Wintour wrote on 3 June 2020 that Cameron had been scared of the public perception of an influx of Hong Kong nationals to the UK in 2015 (when he encouraged China to allow Hong Kong to elect its leader without Beijing interference but went no further), while Johnson's hard stance to allow such mass migration is seen as a risk worth taking because it would also fundamentally undermine China's economy.[46]

Wintour and Guardian journalist Helen Davidson suggested that the ambiguity and possible conflicting statements on the number of Hong Kong residents the BNO measures will be extended to could reflect several things. One reason may be differences in opinion within the Cabinet, but Wintour and Davidson also write that it may be a tactic "to leave China guessing about the potential scale of a British-enabled brain drain from Hong Kong, if Beijing seeks to suppress human rights in the territory".[41]

The director of Hong Kong Watch, a human rights NGO, Johnny Patterson, felt that Johnson's announcement was "a watershed moment in Sino-British relations [because] no sitting PM has made a statement as bold as this on Hong Kong since the handover".[41] Patterson added that it shows "the severity of the situation on the ground [and] the fact that the British government genuinely, and rightly, feel a sense of duty to citizens of Hong Kong and are going to do all they can to stop them becoming the collateral damage of escalating geopolitical tensions".[41]

Davidson and Guardian Australia journalist Daniel Hurst note that despite powerful political calls in the country, and a precedent of good relations with Hong Kong and helping evacuate Chinese people in times of emergency, Morrison had a detached approach to the issue of welcoming fleeing Hong Kongers. They said Australia was "issuing statements of concern jointly with likeminded countries including the US, the UK and Canada, rather than speaking out on its own", and said this was because Australia had recently strained its relations with China when it was early to call for an inquiry related to the spread of COVID-19.[44]

Japan, which signed a statement with the G7 condemning China in relation to imposition of the law on 17 June, is typically neutral to Chinese politics. Wintour suggested that Japan decided to add their voice to the international dissent because of "a growing Japanese perception of the technological threat to Japanese security posed by China".[40] Shinzo Abe said that he wanted Japan to take the lead on the G7's statement, an announcement that drew criticism from China.[40]