China’s National People’s Congress (NPC) is expected to pass the measure on May 28, and the NPC Standing Committee will then draft and enact the final legislation. By August — without local consultation or deliberation — Beijing will probably roll out the legislation in Hong Kong, ahead of September’s Legislative Council elections.
What will this mean for Hong Kong’s autonomy? Here’s what you need to know.
Beijing’s decision far exceeds the Hong Kong Basic Law’s requirement for national security legislation
The Basic Law, the city’s mini-constitution, stipulates in Article 23 that the local government “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.” The Hong Kong government attempted to enact such a national security law in 2003, but after half a million people protested, the local government was forced to shelve the bill.
Beijing blames the lack of a national security law for last year’s anti-extradition protests. The draft decision suggests the “defenseless” status of national security in Hong Kong requires national-level action.
However, the proposed legislation, tailor-made for Hong Kong only, goes far beyond Article 23 by adding terrorist activities and prohibiting all overseas interference, not just political activities of foreign political groups. It covers not just the central government, but also the Hong Kong government. Storming or blockading the city’s government offices, the Legislative Council or police stations — acts that happened during the months of protests in 2019 — could fall under the new law.
Vice Premier Han Zheng stressed the law is aimed at only pro-independence activists, violent radicals and protesters seeking to derail the city’s economy with a mentality of “if we burn, you burn with us.” However, acts of protest violence — including rioting, arson, and possession of weapons — are already punishable under existing legislation, suggesting there’s no need to fill a legal loophole.
Despite official reassurances, the decision will surely stifle freedom of expression, as the new law will probably include vague language such as “spreading rumors.” Even under existing law, veteran democracy leaders including Martin Lee were arrested in April for peaceful “unauthorized assembly.” The Hong Kong government also declared the annual Tiananmen Square commemoration on June 4 “unlawful” for the first time.
Beijing’s security agencies will come to Hong Kong
The extradition bill that triggered citywide protests since last May would have allowed Beijing to extradite people from Hong Kong to mainland China. Article 4 of the draft decision takes the dramatic step of bringing China’s Public Security and National Security agencies to the city.
Beijing security agents previously reportedly kidnapped a Hong Kong bookseller and a mainland billionaire from Hong Kong in contravention of the Basic Law. The new law will allow Chinese agents to formally and openly operate in the city for “joint” investigations. The Hong Kong and Macau Affairs Office and the Liaison Office recently declared they represented the central government and thus were not bound by Basic Law restrictions on interference in local affairs. Beijing’s security agencies may well claim the same.
Even without the overt participation of mainland security, Beijing has already appropriated Hong Kong’s once-respected police for a bloody, decapacitation campaign. Beijing officials from President Xi Jinping on down have praised the Hong Kong police’s “forceful actions” against “rioters.”
Since June 2019, police have arrested more than 8,000 in Hong Kong and injured thousands more — protesters allege police officers have beaten them with batons, pinned them down and rubbed their faces against the ground, pepper-sprayed their wounds and broken bones. In detention centers, the arrested are allegedly subject to torture and denied access to families and lawyers for hours.
Beijing is ignoring the Basic law
This new national security law will mark the end of “one country, two systems,” even if Chinese officials claim to be preserving it by the proposed legislation.
Basic Law Article 23 stipulates Hong Kong shall enact national security legislation “on its own.” Article 18 specifies “National laws shall not be applied in the Hong Kong Special Administrative Region,” except for those relating to defense and foreign affairs or matters outside “the autonomy of the Region as specified by this Law.” Instead, the NPC Standing Committee appears poised to enact this legislation, with the Hong Kong chief executive promulgating it — bypassing the Hong Kong Legislative Council.
Another concern is whether Hong Kong judges will be able to review the law to ensure compliance in text and application with Basic Law requirements. A Hong Kong delegate to the NPC has even proposed to establish a separate national security tribunal. If adopted, this arrangement would end the independent and final jurisdiction as promised in Basic Law Article 19.
What happens now?
Protesters have long feared Hong Kong will become just “another Chinese city.” It could be worse. In most mainland cities, Beijing applies a heavy hand to only the rare dissenters. In Hong Kong, the heavy turnout for November’s local elections and broad support for the protest movement suggest the majority of Hong Kong’s population are resisting Beijing.
Many residents now fear Beijing may borrow from its experience quelling unrest in Xinjiang or Tibet, to destroy the political “virus” in Hong Kong. That would entail keeping a dossier on every noncompliant resident and imposing national education on generations of young people.
Since last summer’s protests, Hongkongers have called for Western democracies to “Catch Hong Kong as We fall.” With the NPC’s announcement of new security legislation for Hong Kong, Western governments and parliamentarians have one after another condemned Beijing’s move. But words that are not backed by actions seem unlikely to “catch Hong Kong” or preserve its autonomy.
Editor’s note: This article has been updated to clarify that democracy leaders were charged with “unauthorized assembly” for joining an unapproved protest.
Michael C. Davis is a Senior Research Scholar at the Weatherhead East Asia Institute at Columbia University, a Global Fellow at the Wilson Center and Professor of Law and International Affairs at O.P. Jindal Global University. He was formerly a professor in the University of Hong Kong Faculty of Law.
Victoria Tin-bor Hui is Associate Professor in Political Science at the University of Notre Dame. A Hong Kong native, she has recently written on “Today’s Macau, Tomorrow’s Hong Kong?” What Future for “One Country, Two Systems?” “Beijing’s Hard and Soft Repression in Hong Kong” and “Beijing’s All-Out Crackdown on the Anti-Extradition Protests.”