Disclaimer: this is the private work of Lisa Chow, committee member of the Amnesty Student Group Utrecht (AISU) PR-committee, and does not represent an official Amnesty International analysis.
The amendment of the National Security Law (hereinafter referred to as “NSL”) in the Special Administrative Region of Hong Kong (hereinafter referred to as “Hong Kong” or “HKSAR”) has raised concerns for the protection of a multitude of human rights, such as the freedom of expression and freedom of peaceful assembly. Volker Türk, the UN High Commissioner for Human Rights, described the legislation as “a regressive step for the protection of human rights in Hong Kong”, fearing for “potential misuse and arbitrary application”[1]. What is this Bill and why are people concerned?
HISTORICAL BACKGROUND
Hong Kong used to be under British colonial rule. However, this changed in 1997 when Hong Kong was handed over to the Central People’s Government of China (hereinafter referred to as “China”) under the promise of “one country, two systems”. This promise would ensure that Hong Kong, who under British rule lived following liberal democratic ideals, could mostly govern itself. This has been codified in Hong Kong’s mini-constitution, also called the “Basic Law”.[2] However, in recent years the Chinese Communist Government has started interfering with Hong Kong’s affairs. This interference has commenced, despite the existent agreement between China and Hong Kong which states that:
“[t]he socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.”[3]
This implies that China would refrain from interfering with the HKSAR until 2047, 50 years after the region was given back to China. However, one can question whether China is abiding to this agreement.
Back in 2019, an uprising followed after the proposed Extradition Bill, which would allow Hong Kong defendants to be subjected to mainland China’s jurisdiction, and thus its legal system.[4] Since there exists such a stark contrast between the two systems, opposition was fearful of the consequences that this would have for their fair trial rights. Man-Kei Tam, the Director of Amnesty International Hong Kong warned that mainland China’s judicial system “offers no protection whatsoever against politically-motivated prosecutions by the authorities”.[5] The opposition was scared of the risk that, under mainland China’s rule, stricter measures would be imposed that do not align with Hong Kong’s democratic ideals. Massive protests followed and eventually, the Bill was overthrown.
However, tensions remained. In 2020, the NSL was introduced by mainland China, which imposed a significant reduction on the liberties of Hong Kong. Despite massive backlash, the NSL passed on the 30th of June 2020.[6] The NSL has negatively impacted the daily lives of Hong Kong citizens. Several UN human rights experts have expressed their concerns, even stating that the authorities should refrain from using the NSL at all.[7] The adoption of the NSL, according to the experts, cheapens “the seriousness of terrorist acts and sedition offences”, leading to HKSAR using these vague definitions “to justify quelling domestic dissent, limiting protests and curbing criticism by civil society and human rights defenders”.[8] The Human Rights Committee[9] has called upon China to align the NSL with the International Covenant on Civil and Political Rights.[10]
SAFEGUARDING NATIONAL SECURITY BILL
Despite these urgent calls, the Legislative Council (hereinafter referred to as “LegCo”) of HKSAR have, recently, introduced even more stringent measures with the introduction of the “Safeguarding National Security Bill”. In contrast to the NSL, this Bill, now known as the “Safeguarding National Security Ordinance” (hereinafter referred to as SNSO)[11] is homegrown legislation. This SNSO expands the legal framework of the NSL.[12] The 2020 NSL was already effective in silencing opposition. This time around it would be even easier for the Bill to pass, “knowing its opponents would be virtually powerless to stop it”.[13]
Over the years the HKSAR has become increasingly pro-Beijing. Members of the LegCo, for example, need to pass a “political loyalty screening”.[14] This ensures a united front. It therefore comes as no surprise that the Bill passed on the 19th of March 2024 with a unanimous vote.[15]
Thus, instead of seeing SNSO as legislation that imposes further restrictions on Hong Kong citizens, it was warmly welcomed. “Today is a historic moment for Hong Kong”, that is what Hong Kong leader John Lee said after the vote on the Bill.[16] The LegCo believes that the bill is a necessary measure to safeguard “Hong Kong’s long-term prosperity and stability and protect the basic rights of Hong Kong residents”.[17]
Critics argued that the eleven day deliberation process illustrated a rushed decision making process and expressed concerns for the misuse of the law and arbitrary applications. Others highlighted the efficiency of the executive-led system and quick decision making.[18] Moreover, the misuse of the law and arbitrary application should not be feared. Those who have done nothing wrong will not fall under the application of this law, it was reassured [19].
ARTICLE 23
The legal basis for the enactment of the SNSO and, thus, the provision at the center of all this is, article 23, which states:
“[t]he Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of 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.”[20]
This article grants power to the HKSAR to enact its own security law. The SNSO was, therefore, seen as an opportunity to do exactly so. Lee referred to it as an ability to fulfil a long-overdue duty.[21]
The SNSO introduced five additional categories of crimes.[22] Some of these new crimes will be briefly dissected in the following section.
Treason
The maximum penalty of this offence is life imprisonment.[23] One of the punishable offences includes having to notify authorities if they are aware of another person having committed or will commit treason.[24] The practical effect of this provision is a duty for Hong Kong citizens to spy on fellow residents.[25]
Sabotage and endangering National Security
The maximum penalty of this offence is life imprisonment.[26] The definition of national security, derived from mainland China, is the following:
“the status in which the state’s political regime, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major interests of the state are relatively free from danger and internal or external threats, and the capability to maintain a sustained status of security” (emphasis added).[27]
Particularly worrisome is the term “social development”, which could encompass a wide range of activities and generally do not seem to coincide with the idea that this “endangers national security”.
Offences in connection with State Secrets and Espionage
Sentences vary from 5-20 years.[28] State secrets encompass economic, social and technological developments, resulting in worry from financial professionals who have to deal with sensitive corporate information.[29] Moreover, “social development” is also seen as a state secret.[30] Once again, what constitutes “social development” is unclear.
External interference
External interference that endangers national security can receive a maximum prison sentence of 14 years.[31] External forces include not only governments of a foreign country[32] but also organizations that “pursue political ends”[33] and “international organizations”.[34] Without a clear definition on what constitutes “external force”, this has a severe chilling effect on human rights organizations and bodies.[35]
CONSEQUENCES OF THE LAW AND CONCLUSION
Consequently, the arbitrary application of these vaguely defined laws poses a real threat to fundamental freedoms and rights of not only Hong Kong’s citizens, but also for international organizations and other non-Chinese people.[36] With overly broad definitions, a wide range of crimes could fall under these provisions.
“For such important legislation, with a significant impact on human rights to be passed without a thorough process of deliberation and meaningful consultation is a regressive step for the protection of human rights in Hong Kong”.[37]
This has the unwanted consequences of an increased amount of self-censorship in a time where open debate is vital.[38] With the increasing influence of mainland China looming over Hong Kong, the once democratic Hong Kong is becoming more and more undemocratic. One can genuinely question what is left of the promise of “one country, two systems”. The enactment of the SNSO further contributes to the democratic erosion of Hong Kong and illustrates a blatant disregard for fundamental human rights. Only time will tell what the future will bring for the, once blooming, Hong Kong.
[1] Rushed adoption of national security bill a regressive step for human rights in Hong Kong – UN Human Rights Chief | OHCHR
[2] Hong Kong: Human Rights Update as of July 2024 - Amnesty International p.5; The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990 Promulgated by Order No. 26 of the President of the People’s Republic of China on 4 April 1990 Effective as of 1 July 1997) Basic Law - Basic Law (EN) (hereinafter: “Basic Law”).
[3] Basic Law, art. 5
[5] Hong Kong: Proposed extradition law amendments a dangerous threat to human rights - Amnesty International
[9] This Committee monitors the compliance of China’s obligations under the International Covenant on Civil and Political Rights (also referred to as the “ICCPR”).
[10]docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsr2bAznTIrtkyo4FUNHETCQ0Y7P%2Fow040gd8LZ9d1NQu1IjjZpy6SRHzfb%2F5%2BcOjaAyzu%2Bcc17dwDhDhWKYldeLcOxK4cDHo05917Gn9hyZz%2FRZXPG%2BD%2FCW8HWkhexMQiQ%3D%3D; Despite the fact that China has not ratified the ICCPR, it has signed the ICCPR, which implies an intention to comply. However, without a ratification the Covenant does not impose legally binding obligations upon China. See also tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=36&Lang=EN for China’s ratification status and Arts. 2 (1) (b), 14 (1) and 16, Vienna Convention on the Law of Treaties 1969.
[11] Safeguarding National Security Ordinance. Instrument A305 Safeguarding National Security Ordinance (hereinafter: “SNSO”)
[17] The completion of Basic Law Article 23 legislation reflects the will of the people - Chinadaily.com.cn
[18] The completion of Basic Law Article 23 legislation reflects the will of the people - Chinadaily.com.cn
[19] The completion of Basic Law Article 23 legislation reflects the will of the people - Chinadaily.com.cn
[20] Basic Law, art. 23
[23] SNSO, part 2, section 10
[26] SNSO, part 5, section 49
[27] SNSO, part. 1 section 4, para 4
[28] See SNSO sections: 32, 33, 34, 35(1), (4), (5), 35(6),(8), 36, 37, 43(1),(2)(a),(2)(b), 43(1),(2)(c), 43(3).
[30] SNSO, part 1, division 1, section 29
[31] SNSO, part 6, division 1, section 52
[32] SNSO, part 1, section 6, para (1)(a)
[33] SNSO, part 1, section 6, para (1)(d)
[34] SNSO, part 1, section 6, para (1)(e)
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