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 Tuesday, all but a tiny handful of Hong Kongers still had no idea what the law contained.
Promulgated in Hong Kong late Tuesday night, bypassing the local legislature, the law criminalizes “acts of secession, subversion of state power, terrorist activities, and collusion 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.
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. The national security law trumps any existing Hong Kong laws, should there be a conflict.
The law also extends Beijing’s direct control over the city, establishing a new committee for national security that will include a Beijing-appointed adviser, and an “Office for Safeguarding National Security,” directly under the Beijing government, which has broad powers to prosecute Hong Kongers deemed to have committed particularly egregious offenses.
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.
“The national security law is a crucial step to ending chaos and violence that has occurred over the past few months,” Lam, the city’s chief executive, said Wednesday. “It’s a law that has been introduced to keep Hong Kong safe. The legislation is lawful, constitutional and reasonable.”
Chilling effect
Before it was even in force, the law had begun to have a chilling effect, with multiple political parties disbanding, shops removing anti-government paraphenalia, and people deleting social media accounts and old posts.
That will likely accelerate, as the offenses 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 offense 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 Tuesday of senior police commanders, they were told that anyone seen waving a pro-independence flag or chanting in support of independence must be arrested, a police source told CNN. In addition, the source said anybody searched and found to have independence flags in their possession will be arrested.
Subversion and terrorism are also defined particularly widely, with the latter including “dangerous activities which seriously jeopardize 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.
In particular, the law criminalizes the “sabotage of means of transport (and) transport facilities,” or the “serious interruption or sabotage of electronic control systems” relating to transport, which could be interpreted to include vandalizing subway stations or blocking roads and buses.
The maximum punishment for serious terrorist offenses is life in prison, with a minimum sentence of 10 years. Those found guilty of related, less serious offenses 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, organization or individual” could be guilty of an offense 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, “seriously disrupting the formulation and implementation of laws or policies” in the city, or “provoking by unlawful means hatred among Hong Kong residents towards the Central People’s Government.”
In China, people have been prosecuted for leaking “state secrets” to overseas media, governments and organizations, something the new Hong Kong law also criminalizes, potentially making it far harder for foreign journalists and NGOs to operate in the city.
One of the duties of the Office for Safeguarding National Security, which reports directly to Beijing, will also be the “management of (the) organs of foreign countries and international organizations in (Hong Kong), as well as non-governmental organisations and news agencies of foreign countries.”
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 organizations, labor 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 to particular issues.
“A person shall not be designated as a judge to adjudicate a case concerning offense endangering national security if he or she has made any statement or behaved in any manner endangering national security,” the law states.
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, with the Office for Safeguarding National Security taking the lead, applying Chinese law and legal standards.
The office “shall initiate investigation into the case, the Supreme People’s Procuratorate shall designate a prosecuting body to prosecute it, and the Supreme People’s Court shall designate a court to adjudicate it,” the law states.
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 criticized for politicized prosecutions in which defendants are denied access to lawyers.
What comes next?
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 tiny number of people.
Following its passage Tuesday, a Hong Kong government spokesman reiterated that the law “targets an extremely small minority of offenders while the life and property as well as various legitimate basic rights and freedoms enjoyed by the overwhelming majority of citizens will be protected.”
“There is nothing for Hong Kong citizens to worry about in exercising these legitimate rights,” he added.
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.
