Impact of Security Law by China on Hong Kong -Saloni Sharma
Introduction
Hong Kong has been amidst the headlines over the years because of its various pro-democracy protests, also called ‘Umbrella Movement’, organized against the Chinese government. In 2014 the Country retaliated against the electoral system, in 2019 against the proposed extradition law and in 2020 against the security law imposed in the region. Many critics claim that the introduction of the security law amounts to a breach of the ‘one country, two systems’ principle, which is enshrined in its Basic Law.
History
Hong Kong, though free of the British colonial rule, is not an independent state. It became ‘a special administrative region of China’ in the year 1977, upon the expiration of the British lease. The Country is administered by a mini-constitution called the ‘Basic Law’ and follows the ‘one country, two systems’ principle. Under the principle, the region enjoys a high degree of autonomy[1] and can preserve its economic and social systems for 50 years from the date of handover to China.
The Basic Law contains that the Hong Kong Special Administrative Region(HKSAR) itself shall enact laws to prohibit treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.[2]
The
Government has made various attempts till date to implement a security law. The
SAR Government proposed to implement Article 23 of the Basic Law and introduced
a National Security (Legislative Provisions) Bill in February 2003 which was
eventually withdrawn because of massive demonstrations and dissent by the
people in light of the alleged violation of human rights and right to freedom
of expression.
China’s Security Law
On 30th June 2020 China’s top legislature passed the national security law for Hong Kong, bypassing the local legislature. It was kept a secret from the public and even from the Hong Kong government before it was enacted.
Article 62 of the Law contains a provision declaring that the law shall prevail over the local laws of the Hong Kong Special Administrative Region, in case of any inconsistency.[3] Though the Basic Law mentions that the Chinese laws can't be applied in Hong Kong unless they are listed in Annex III and which may violate the ‘one country, two systems’ principle in the light of the autonomy given to the region, some critics claim that the same can be done technically.
Key Features
The new law brings the following noteworthy changes in the administration of the region-
- Punishment for crimes of secession, terrorism, subversion and collusion with foreign forces extends to a maximum sentence of life imprisonment. [4]
China also maintains Macao as its Special Administrative Region, which has a similar national security law enacted in 2009. The law prohibits seven crimes including- treason, secession, sedition, subversion, theft of state secrets, etc., which are punishable with a term of 10-25 years.[5] Hence, the punishment of life imprisonment for similar crimes in Hong Kong as compared to Macao, is a matter of debate.
- It empowers Beijing to establish a new security office in Hong Kong, with its own law enforcement personnel, which does not fall under the jurisdiction of the local authorities.[6] Hong Kong is also to establish its own national security commission to enforce the laws, with a Beijing-appointed adviser. [7]
- This law also applies to Citizens, non-permanent residents of Hong Kong and also the Companies that commit offences under the law.[8]
- It gives the police far-reaching powers to collect evidence, including tapping communications, spying[9] carrying out interception of communications and conducting covert surveillance on suspects.[10] This provision of the law is criticized by various companies on the grounds of violation of data privacy of their consumers. Under the law, the police can also request platforms and service providers to remove information and assist in investigations. Moreover, it also punishes the companies that violate the national security laws with fine or by suspending their operations.
Possible Impact
The newly introduced law has been receiving mixed reactions from different countries throughout the globe. 27 countries including the UK, France, Germany, and Japan, have urged for reconsideration of the legislation, whereas a total of 53 countries supported China's national security law for Hong Kong at the 44th United Nations Human Rights Council (UNHRC) Session in Geneva.
As per the 2019 Hong Kong Policy Act Report, withmore than 1,300 U.S. firms operating in the region, the United States continues to have deep economic and cultural interests in Hong Kong.[11] However, following the implementation of the security law, it has threatened to withdraw its trade privileges given to Hong Kong, saying that it may not treat it as autonomous from Beijing, which was later followed by implementation of restrictions on American exports of defence equipment and some high-technology products to Hong Kong.
The provisions of the law gives extensive powers to the Hong Kong Police to censor Internet content, seize electronic records, investigate Internet platforms, etc., which have raised concerns for the companies as to whether to accept the new data-sharing and censorship requirements or leave the territory altogether. Some companies like Telegram Facebook, Twitter, Google, and Microsoft have suspended all requests for data from Hong Kong, and are currently reviewing the legislation.
Conclusion
Hong Kong’s twice-yearly ranking of the world’s global financial centresdropped from third to sixth place from September 2019 to March 2020[12] which may be attributed to the 2019 pro-democracy protests leading to shutting down of commerce, followed by the Covid 19 outbreak which has led its economy to a recession. The concerns of various companies regarding the data privacy laws and certain other provisions under the new law may lead to fluctuations in the position of Hong Kong in the global Market and its status as one of Asia’s most prominent financial hubs, which in turn may affect China, as it depends largely on Hong Kong for its stock exchange and Foreign Direct Investments.
[1]Basic Law, art. 2.
[2]Basic Law, art. 23.
[3]The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, art.62 (2020).
[4]The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, art.20 (2020).
[5]Macao Special Administrative Region- National Security Law, art.1 (2009).
[6]The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, art.48 (2020).
[7]The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, art.15 (2020).
[8]The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, art.34 (2020).
[9]The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, art.17 (2020).
[10]The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, art.43(6) (2020).
[11]2019 Hong Kong Policy Act Report, Trade, Commerce, and Finance (Aug. 14, 2020, 3:40 PM) https://www.state.gov/2019-hong-kong-policy-act-report/.
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