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Explained: How new Hong Kong security law gives China more controls on city state

The far-reaching law, which greatly expands Beijing’s power in Hong Kong, has been criticised by the United States as “draconian”. The United Kingdom has also called its passing a “grave step”.

Written by Om Marathe , Edited by Explained Desk | New Delhi |
Updated: July 2, 2020 10:34:12 am
Protesters against the new national security law gesture with five fingers, signifying the “Five demands – not one less” on the anniversary of Hong Kong’s handover to China from Britain in Hong Kong (AP)

At 11 pm on Tuesday, an hour before the 23rd anniversary of Hong Kong’s transfer from Britain, China unveiled a sweeping new national security law for the island city, taking aim at the pro-democracy movement that had captured global attention since last year.

Titled ‘The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region’, the legislation was “unanimously” passed by the Chinese parliament earlier that day, and subsequently made a part of Hong Kong’s Basic Law, Global Times said.

The far-reaching law, which greatly expands Beijing’s power in Hong Kong, has been criticised by the United States as “draconian”. The United Kingdom has also called its passing a “grave step”.

New law targets protesters with harsher punishments 

The new law includes the following as offences– Secession, Subversion, Terrorist Activities, and Collusion with a Foreign Country or with External Elements to Endanger National Security. All four offences can invite life imprisonment as the maximum punishment, followed by lesser penalties.

The offences are widely defined. Collusion includes as an offence “provoking by unlawful means hatred among Hong Kong residents” towards Beijing or the city government. Terrorism includes “sabotage of means of transport, transport facilities, electric power or gas facilities, or other combustible or explosible facilities”, and “attacking or damaging the premises and facilities” of the city government is among the definitions of subversion. Taking aim at the perceived involvement of foreigners in city politics, the law also allows the prosecution of persons who are not the residents of Hong Kong for committing an offence under the law outside Hong Kong.

Office for Safeguarding National Security

The new national security law further blurs the distinction between the legal systems of semi-autonomous Hong Kong, which maintained aspects of British law after the 1997 handover, and the mainland’s authoritarian Communist Party system.

Bolstering its presence in Hong Kong, mainland China will establish a new department here called the ‘Office for Safeguarding National Security’. With Beijing’s approval, the Office would be able to take over jurisdiction from the city’s independent law courts if a case is “is complex due to the involvement of a foreign country or external elements”, if “a serious situation” makes the local application of the security law difficult, or due to the occurrence of “a major and imminent threat to national security”.

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Police detain a protester after spraying pepper spray during a protest in Causeway Bay before the annual handover march in Hong Kong (AP)

In cases that are taken over by the Office, prosecutors as well as adjudicators will be appointed by mainland China, and Chinese procedural laws would apply.

Like their counterparts in India, Hong Kong courts are known to follow a strict interpretation of criminal statutes– offering a greater advantage for the person accused. Under the new law, however, the power of interpretation has been vested in the Standing Committee of the Chinese parliament, which could prescribe harsher sentences for the same offences.

If a trial involves “State secrets” or “public order”, it could be closed to the media and the public; only the judgment would be delivered in open court.

The Hong Kong Police Force will also have a separate department to deal with national security matters, and the city’s Justice Department will have to form a specialised prosecution division.

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Notably, the police will have sweeping powers to investigate offences, such as being able to search any premises, vehicles, aircraft; ordering the surrender of travel documents; confiscating property; and, upon the Chief Executive’s approval, being able to covertly investigate or tap phones– such powers that have traditionally required prior court approval, as per the South China Morning Post.

A new body called the ‘Committee for Safeguarding National Security’ will be formed with Hong Kong’s Chief Executive at its helm, and will be immune from judicial scrutiny. The Committee, which will have a Beijing-appointed national security adviser, will be responsible for formulating national security policies among other tasks.

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Protesters set up a defense shield using umbrellas and wave Hong Kong Independence flags on a road during against the new national security law march of Hong Kong’s handover to China from Britain in Hong Kong (AP)

The national security quagmire

A former British colony, Hong Kong was handed over to mainland China in 1997, becoming one of its Special Administrative Regions. It is governed by a mini-constitution called the Basic Law — which affirms the principle of “one country, two systems”, and upholds Hong Kong’s liberal policies, system of governance, independent judiciary, and individual freedoms for a period of 50 years from 1997.

Under Article 23 of the Basic Law, Hong Kong was supposed to enact the national security law on its own. But, when the city government first tried to enact the law in 2003, the issue became a rallying point for massive protests that year. Ever since, the government steered clear of introducing the legislation again.

The other way of implementing the law was by its inclusion in Annex III of the Basic Law– a list of legislations “confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region.” Adding a law to this list causes it to be enforced in the city by way of promulgation– meaning automatically being put into effect. Beijing on Tuesday chose this route.

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