China Moves to Impose National Security Law on Hong Kong

China Moves to Impose National Security Law on Hong Kong

June 4, 2020
China Moves to Impose National Security Law on Hong Kong
Overview
by the Basic Law “as soon as possible.” In addition, Hong
China’s legislature, the National People’s Congress (NPC),
Kong’s Chief Executive is instructed to “effectively
on May 28, 2020, adopted a decision authorizing its
prevent, stop, and punish acts and activities endangering
Standing Committee (NPCSC) to write national security
national security,” carry out national security education in
laws that will apply only to China’s Hong Kong Special
Hong Kong, and report regularly to Beijing about Hong
Administrative Region (HKSAR). The decision also
Kong’s national security work.
requires the HKSAR government to pass local legislation to
protect China’s national security, although previous
Finally, the decision states, “When needed, relevant
attempts to pass national security legislation in the city have
national security organs of the Central People’s
failed in the face of massive public protests.
Government will set up agencies in the HKSAR to fulfill
relevant duties to safeguard national security in accordance
Many observers see the NPC decision as a violation of
with the law.” It is unclear if these agencies will be
China’s obligations under two of Hong Kong’s
branches of the national security organs, Hong Kong
foundational documents. The first is the 1984 Sino-British
entities, or some form of joint entities. China’s central
Joint Declaration on the Question of Hong Kong, the
government currently maintains in Hong Kong a Liaison
international treaty on the transfer of sovereignty over Hong
Office, an Office of the Commissioner of the Ministry of
Kong from the United Kingdom to China on July 1, 1997.
Foreign Affairs, and a garrison of 12,000 People’s
The second is China’s Basic Law of the HKSAR of 1990,
Liberation Army soldiers.
which established the HKSAR. Both documents state that
the HKSAR is to enjoy a “high degree of autonomy, except
Next Steps
in foreign and defence affairs” and that the “rights and
freedoms” of the people of Hong Kong will remain
Beijing
unchanged until at least 2047. Many observers also view
The NPC decision does not set a timeframe for the NPCSC
the NPC’s decision as contrary to China’s “one country,
to write the national security legislation or for central
two systems” policy, under which the people of Hong Kong
government national security organs to establish agencies in
are to govern Hong Kong. China insists the moves are
the HKSAR. The NPCSC, a select group of 159 of the full
necessary to “maintain and improve” the “one country, two
NPC’s nearly 3,000 delegates, has the authority to pass
systems” policy in a situation in which it believes the “one
legislation on its own, without having to return it to the full
country” part of the formula has come under threat from
parliament for a vote. Once the NPCSC adopts the
advocates for resistance to China’s central government in
authorized national security laws, the NPC decision allows
Beijing.
the NPCSC to decide to add the laws to the list of national
laws applicable to the HKSAR in Annex III of the Basic
On May 29, 2020, President Donald J. Trump accused
Law. The NPCSC meets approximately every two months.
China of extending “the reach of China’s invasive state
It last met on May 18, 2020.
security apparatus into what was formerly a bastion of
liberty,” and of doing so in violation of the Joint
Hong Kong
Declaration and the Basic Law. In response, the President
To comply with the NPC decision, the HKSAR government
said he would “begin the process of eliminating policy
and Hong Kong’s Legislative Council (Legco) must pass
exemptions that give Hong Kong different and special
the local legislation required by Article 23 of the Basic Law
treatment.” He did not specify a timeframe for action.
(See below). In addition, the HKSAR government is
Multiple bills related to protecting Hong Kong’s autonomy
required to “promulgate and implement” the NPCSC-
are pending in the U.S. Congress.
drafted national security legislation.
NPC Decision
The NPC decision authorizes the NPCSC to “formulate”
Article 23 of the Basic Law—The Hong Kong
and impose on Hong Kong legislation “to improve the
Special Administrative Region shall enact laws on its
HKSAR legal system and enforcement mechanisms.” The
own to prohibit any act of treason, secession, sedition,
legislation is to “effectively prevent, stop, and punish acts
subversion against the Central People’s Government,
and activities to split the country, subvert state power,
or theft of state secrets, to prohibit foreign political
organize and carry out terrorist activities, and other
organizations or bodies from conducting political
behaviors that seriously endanger national security, as well
activities in the Region, and to prohibit political
as activities of foreign and external forces to interfere in the
organizations or bodies of the Region from
affairs of the HKSAR.”
establishing ties with foreign political organizations or
bodies.
The NPC decision also states that the HKSAR government
should complete local national security legislation required
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China Moves to Impose National Security Law on Hong Kong
Reasons for the NPC Action
activists claim mainland security personnel were already
NPCSC Vice Chairman Wang Chen on May 22, 2020,
secretly working with the Hong Kong Police Force.
alleged a surge in national security risks in Hong Kong over
U.S. Response
the last year justified the need for the NPC decision. He
highlighted calls for Hong Kong independence, attacks on
On May 27, 2020, before passage of the NPC decision,
the Chinese national flag and national emblem, efforts to
Secretary of State Michael Pompeo informed Congress,
“incite” the people of Hong Kong to be “anti-China” and
under the U.S.-Hong Kong Policy Act of 1992 (USHKPA)
“anti-Communist Party of China,” activists’ “besieging”
(P.L. 102-383), of his certification that Hong Kong does not
Chinese government’s institutions in Hong Kong, and
continue to warrant treatment under U.S. law in the same
alleged efforts to “discriminate against and exclude” people
manner as before its handover to China on July 1, 1997. In
from mainland China. Wang lashed out, too, at external
his May 29 remarks, President Trump said his new
forces for providing “support and an umbrella for the anti-
approach to Hong Kong would “affect the full range of
China forces disrupting Hong Kong.” Wang also argued
agreements we have with Hong Kong, from our extradition
that the HKSAR government’s failure for the last 23 years
treaty to our export controls on dual-use technologies and
to comply with Article 23 of the Basic Law made the NPC
more, with few exceptions.” He also said the State
decision necessary.
Department would revise its travel advisory for Hong Kong
“to reflect the increased danger of surveillance and
A 2003 effort by the HKSAR government to pass Article 23
punishment by the Chinese state security apparatus.”
legislation prompted an estimated 500,000-person protest
Statements by China and the HKSAR
and the subsequent resignation of then-Hong Kong
Government
Secretary of Security and now Legco member Regina Ip
Lau Suk-yee. Many observers consider the 2003 protest a
After a June 3, 2020, meeting in Beijing with Chinese Vice
significant factor in China’s loss of support for then-Hong
Premier Han Zheng, Chief Executive Lam said Han had
Kong Chief Executive Tung Chee-hwa, and his decision to
reiterated to her that the new national security legislation
resign in March 2005. (Officially, he resigned for health
would target only “a small minority” of “criminals” in
reasons.) No subsequent Chief Executive has submitted
Hong Kong. On May 28, 2020, Chief Executive Lam
legislation to Legco to fulfill the requirements of Article 23
welcomed the NPC’s decision, stating the NPCSC’s
of the Basic Law.
national security law “will not affect the legitimate rights
and freedoms enjoyed by Hong Kong residents.” Lam also
Some Chinese officials and Hong Kong politicians called
acknowledged “that the Hong Kong SAR still has the legal
for passage of Article 23 legislation after the 2014 pro-
responsibility to enact legislation in accordance with Article
democracy Umbrella Movement shut down portions of the
23 of the Basic Law and should complete the legislation to
city for nearly three months. Those calls increased in
safeguard national security as soon as possible.”
intensity following the outbreak of large-scale
Issues for Congress
demonstrations in 2019 in response to the HKSAR’s
attempt to revise a local ordinance to allow extraditions to
It remains unclear how President Trump might implement
mainland China. Chief Executive Carrie Lam Cheng Yuet-
his new policies on Hong Kong. The USHKPA authorizes
ngor declined to introduce Article 23 legislation, however,
the President to determine in an Executive Order “that
maintaining that conditions in Hong Kong were not suitable
Hong Kong is not sufficiently autonomous to justify
for addressing such a contentious issue.
treatment under a particular law of the United States, or any
provision thereof, different from that accorded the People’s
Implications for Hong Kong
Republic of China.”
The NPC’s approval of the decision has started a process
that may result in the people of Hong Kong being subject to
In 2019, Congress passed the Hong Kong Human Rights
national security laws imposed by China’s central
and Democracy Act (P.L. 116-76) in response to the
government that are broader in scope than what is required
proposed changes to the HKSAR’s extradition law and to
by Article 23 of the Basic Law. For example, the NPC
provide support to the protesters. Congress may consider
resolution requires the NPCSC laws to prohibit “terrorist
passage of other legislative measures to address the threat
activities” and “foreign and external forces interfering in
to Hong Kong’s autonomy and the human rights of Hong
the affairs of Hong Kong,” language which is not included
Kong residents. The Hong Kong Be Water Act (H.R. 5725
in Article 23.
and S. 2758) would authorize the President to impose
sanctions on persons and entities suppressing freedoms in
As a result, the NPCSC’s laws may end up prohibiting
Hong Kong. H.R. 6947 would allow the President to
activities, behavior, and communications previously legal in
recognize Hong Kong as an independent country. S. 3798
Hong Kong. Some fear that efforts by Hong Kong residents
would impose sanctions on “foreign persons” who are
to lobby the U.S. Congress could be considered illegal
responsible for the erosion of China’s fulfilment of its
under the NPCSC’s laws, for example.
obligations under the Joint Declaration.
The establishment of new national security agencies in
Michael F. Martin, Specialist in Asian Affairs
Hong Kong is another major concern for some. For
Susan V. Lawrence, Specialist in Asian Affairs
example, it could open the way for mainland security
personnel to conduct investigations and initiate criminal
IF11562
prosecutions in Hong Kong. During the 2019 protests,

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China Moves to Impose National Security Law on Hong Kong

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