By Adam O’Carroll
Forty days after the Chinese government said it would pass a national security law for Hong Kong, that legislation is now in force, with potentially massive ramifications for the city’s political freedoms. It was drafted almost entirely in secret, via closed-door meetings in Beijing that even Hong Kong's leader, Carrie Lam, was not a part of. Even hours after its reported passage by China's National People’s Congress, all but a tiny handful of Hong Kongers still had no idea what the law contained.
Declared in Hong Kong, bypassing the local legislature, the law criminalises “acts of secession (attempting to form a separate state), subversion (undermining) of state power, terrorist activities, and collusion (secret cooperation with others to deceive others) with foreign or external forces to endanger national security.” While officials had earlier suggested penalties under the law would be softer than they are in China, the maximum sentence given for each of those four main crimes - secession, subversion, terrorism, and collusion with foreign forces - is life imprisonment.
Legal Conflicts
Right to a trial by jury can be suspended in certain circumstances, cases can be heard in secret, and foreign residents in Hong Kong can be expelled if suspected of violating the law, regardless of conviction. This makes it less likely for a fair trial to occur. The national security law trumps any existing Hong Kong laws, should there be a conflict. Hong Kong and Beijing officials have argued the law is necessary and overdue, and promised it will only affect a tiny minority of Hong Kongers, while returning "stability and prosperity" to the city.
Chilling Effect
Before it was even in force, the law had begun to have a significant impact, with multiple political parties disbanding, shops removing anti-government paraphernalia, and people deleting social media accounts and old posts. That will likely accelerate, as the offences under the law are broad and far-reaching, with no certainty of just what actions will be deemed illegal until prosecutions are brought.
For instance, the offence of inciting, assisting or abetting secession could cover most statements related to Hong Kong independence. At recent rallies, protesters could regularly be heard chanting this was "the only way out," and waving flags promoting separatism. The minimum punishment for such crimes is five-years in prison. In a meeting of senior police commanders, they were told that anyone seen waving a pro-independence flag or chanting in support of independence must be arrested. In addition, anybody searched and found to have independence flags in their possession will be arrested.
Subversion (undermining of state power ) and terrorism are also defined particularly widely, with the latter including “dangerous activities which seriously jeopardise public health, safety or security” for the purpose of “intimidating the public in order to pursue political agenda.” If applied broadly, this could reclassify anti-government protests like the city saw last year - which often turned violent, with clashes between protesters and police, and vandalism of public property - as terrorism, exactly how the protests were often described in Chinese state media. The maximum punishment for serious terrorist offences is life in prison, with a minimum sentence of 10 years. Those found guilty of related, less serious offences can face a minimum of five years in prison.
Foreigners Threatened
While the greatest impact of the law will be on Hong Kongers, it also includes multiple provisions that could affect how foreign entities, in particular media and NGOs, operate in the city. The law states that anyone who “directly or indirectly receives instructions, control, funding or other kinds of support from a foreign country or an institution, organisation or individual” could be guilty of an offence if they are pursuing certain actions deemed hostile to national security. Those include lobbying for sanctions against Hong Kong or Chinese officials - such as those recently imposed by Washington over this very legislation - “undermining” elections in Hong Kong.
In China, people have been prosecuted for leaking “state secrets” to overseas media, governments and organisations, something the new Hong Kong law also criminalises, potentially making it far harder for foreign journalists and NGOs to operate in the city. At present, Hong Kong has a generous visa policy for journalists, who are classed as regular foreign workers and not subject to the more strict regulation seen in China. It is also easy for NGOs to operate in Hong Kong, with human rights organisations, labour groups, and press freedom groups that struggle to operate in China using the city as a base. Non-permanent residents in Hong Kong can be expelled from the city, regardless of whether they are convicted, if suspected of contravening the law.
Judicial Changes
One of the biggest controversies leading up to the passage of the law was the creation of a new panel of judges dedicated to national security cases, who will be appointed by the Chief Executive directly. Legal analysts have warned that this could undermine judicial independence, as it enables the government to pick judges that are potentially sympathetic or biased to particular issues. It adds that jury trials can be suspended when deemed necessary, with cases instead heard by a panel of judges. Beyond this, certain cases can also be handed directly over to the Chinese authorities for prosecution.
When exercising this power, members of the Office “shall not be subject to the jurisdiction of the Hong Kong Special Administrative Region,” and police in the city are obliged to assist in their duties and prevent anyone obstructing them. It is unclear whether such cases will be transferred to the mainland, or if they will be processed in Hong Kong by Chinese prosecutors. The suggestion of extradition to China is what kicked off last year's massive anti-government protests. China has a notoriously high conviction rate, especially in national security cases, and is regularly criticised for politicised prosecutions in which defendants are denied access to lawyers.
Conclusion
For weeks now, Hong Kong officials and the central government in Beijing have been reassuring members of the public that the law will be applied selectively, and only affect a minimal number of people. Whether this is true remains to be seen, and may not be known for months, until the first prosecutions under the law are brought. But the chilling effect already seen this week suggests the repercussions of the law will ripple out well beyond individual cases. Hong Kong has long been known as a “city of protest,” with a vibrant opposition movement, unshackled media and dynamic public discourse. The national security law would appear to take aim at all of this and could reshape the city forever.
Resources / Further Reading:
Buckley, C., Bradsher, K. and May T., 2020. New Security Law Gives China Sweeping Powers Over Hong Kong. New York Times. Available at:
Griffiths, J., 2020. Why China’s National Security Law Could Change Hong Kong Forever. [online] CNN. Available at:
Hernandez, J., 2020. Harsh Penalties, Vaguely Defined Crimes: Hong Kong’s Security Law Explained. New York Times. Available at:
Kuo, L. and Yu, V., 2020. China passes controversial national security law. [online] Guardian. Available at:
Kuo, L. and Yu, V., 2020. Controversial Hong Kong national security law comes into effect. [online] Guardian. Available at:
Soo, Z. and Moritsugu, K. 2020. China Approves Contentious Hong Kong National Security Law. The Diplomat. Available at:
Tsoi, G. and Cho Wai, L. Hong Kong security law: What is it and is it worrying? [online] BBC. Available at:
PHOTO SOURCE: The New York Times
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