On 30 June 2020, China’s top legislature unanimously passed a new national security law for Hong Kong that entered into force in the territory the same day, just before midnight. The Chinese authorities forced the law through without any accountability or transparency: it was passed just weeks after it was first announced, bypassing Hong Kong’s local legislature, and the text was kept secret from the public and allegedly even the Hong Kong government until after it was enacted.
China has routinely labelled legitimate protests as “terrorism”. This latest move obliterates fundamental rights and freedoms, including the right to freedom of association.
The law is dangerously vague and broad: virtually anything could be deemed a threat to “national security" under its provisions. Under this new law, “secession”, “subversion”, “terrorism” and “collusion with foreign forces” incur maximum penalties of life imprisonment. But these offences are so broadly defined they can easily become catch-all offences used in politically motivated prosecutions with potentially heavy penalties.
Under the national security law, the authorities have at their disposal a broad range of powers with absolutely no checks and balances to ensure the rule of law, respect for fundamental rights and due process. Suspects can be removed to mainland China, handled within the mainland’s criminal justice system and tried under mainland law. Investigating authorities can search properties, restrict or prohibit travel, freeze or confiscate assets, censor online content and engage in covert surveillance, including intercepting communications, all without a court order. The Hong Kong Police Force has already established a new national security division to conduct covert surveillance. The authorities can also require information from organisations and individuals, even if the information in question may be self-incriminating. Anyone failing to comply can be fined or imprisoned.
The Chinese government now has a national security arm in Hong Kong. The Chinese central government is setting up an Office for Safeguarding National Security in the heart of Hong Kong. The office and its staff do not fall under Hong Kong’s jurisdiction. Meanwhile, the Hong Kong government has set up another new body, the Committee for Safeguarding National Security, with a delegate from the Chinese central government to “advise” it. The committee has the power to hand-pick personnel in law enforcement and prosecution to handle national security cases. Budget and appointment of personnel related to safeguarding national security will also bypass legislative scrutiny. The Chief Executive can appoint judges to handle national security cases in a way that appears to undermine judicial independence. Under the new law, the committee does not have to disclose its work. Decisions made by the committee are not subject to review by the courts.
Although the national security law includes a general guarantee to respect human rights, including the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, other provisions in the law could override these protections. The law grants immunities and vast exemptions to the national security institutions and their personnel and, in fact, states explicitly that it trumps any Hong Kong laws in case of conflict.
The United Nations human rights office and expert bodies have already repeatedly expressed concerns about the national security law, stating the broadly worded legislation can lead to “discriminatory or arbitrary interpretation and enforcement which could undermine human rights protection”.
This draconian law is so vague it prevents anyone from knowing how and when they might transgress it and has consequently had an instant chilling effect across the territory. Immediately after the law’s passage, authorities started to use it to crack down on legitimate and peaceful assemblies.
