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International Law

Annihilation of Democracy: Hong Kong’s National Security Law

Abhijeet Kashyap

Introduction

At a time when the whole world is facing the brunt of the deadly coronavirus, citizens of Hong Kong are facing the gravest form of human rights violation. Since mid-2019 the protests in the region have been in the media’s  spotlight across the world. These protests are nothing new for a nation whose sovereignty and freedom exist merely on a piece of paper. The business-oriented citizens of Hong Kong were left with no other option than to come out onto the streets as their most basic right to freedom had been threatened. The rise of a turmoil of this scale was viewed  as an inevitable event by many due to Hong Kong’s bewildering history. 

History 

Since the 19th century, sovereignty of Hong Kong has been transferred from one hand to another. In 1842, the signing of the Treaty of Nanking by the then-ruler of the Qing Dynasty ceded the island of Hong Kong to the British colonizers. This arrangement stayed in force until 1972, when the People’s Republic of China requested the United Nations to remove Hong Kong from its list of Non-Self-Governing Territories that were eligible for benefits of the decolonisation process. This move marked the beginning of a communist rule over the island, that was officiated through the Sino-British Joint Declaration of 1984 that contained certain terms to protect the distant nature of Hong Kong’s economy, political and legal system to satisfy people’s thirst for democracy. After the special handover ceremony in 1997, these guarantees were imbibed in the mini-constitution i.e. the Basic Law of Hong Kong. Even though under annex 1 to the declaration, Republic of China was obligated to maintain the autonomous nature of Hong Kong for a period of 50 years, the island has lost its democratic autonomy in relation to law making in mere 30 years.

Previous Attempts 

Since the beginning, the National People’s Congress (NPC) has pestered Hong Kong’s government with the intention of gaining more autonomy over the territory that was limited by the 1984 agreement and the mini-constitution. The most important weapons at the hands of the Chinese government are the much-abused Articles 18 and 23 of the Basic Law of Hong Kong. Under Article 23, the regional government is obligated to enact laws to penalise any act of treason, secession, sedition, subversion against the Central People’s Government. Using this provision as a shield, the Hong Kong government was forced to introduce The National Security (Legislative Provisions) Bill 2003. Thousands took to the streets in protest as the bill was seen as a direct attack on people’s rights because of the widest possible definition of sedition included in the legislation. Due to the mass dissatisfaction with the public, the government retracted the bill that if enacted would have given unqualified powers to the Chinese counterpart in the region’s criminal justice system. 

This was followed by the introduction of special extradition law in the first quarter of 2019. This bill sought to give immense power to the Chinese courts to try the people of Hong Kong under its laws. Under the said legislation, the government attempted to deprive the people of their right to a fair trial by arbitrarily moving their cases to Chinese courts and also attacked the foreign nationals living in Hong Kong by bringing them under scrutiny. Citizens of the island saw this legislation as an attack on the democratic system prevalent in Hong Kong, and once again took to the streets to protest (going on for 1.5 years) against the legislation. 

National Security Law of 2020

With the spread of coronavirus, Chinese government found the perfect opportunity to subdue all the attempts by the citizens who are taking a stand against the draconian legislation. Taking advantage of the nationwide lockdown, NPC drafted the ‘Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region’ which was enacted and implemented on 30th June, 2020. Chinese government while enacting this law cited the inability of the regional government of Hong Kong to enact legislation under Article 23 of the mini-constitution, thus forcing the former to take matters in its hand. 

To achieve this objective, NCP enacted National security law under Article 18 of the basic rules, conferring wide-ranging powers to the Chinese government to decide in cases of secession, subversion against the central Chinese government, terrorist activities, and collusion with foreign forces to endanger national security. At this point legality of the enactment itself under Article 18 must be questioned. This is because the said article enables the Chinese Parliament to add and amend laws in relation to matters dealing with foreign affairs and defence mentioned in Annexure 3 to the basic rules. Further, article 18 contains in itself a requirement that consultation from the government of Hong Kong must be sought before making any such amendment to the annexure. But in the present legislation, article 18 was misinterpreted to derive legality as neither the consultation of democratically elected government of Hong Kong was sought nor any amendment were made in Annexure 3 that could imbibe the wide ranging powers under National Security Law.

In addition to being established through a perverted procedure, the 2020 legislation has impinged upon the sovereignty of Hong Kong that was guaranteed under the international agreement of 1987. For the first time in history, Chinese officials are allowed to function on the island over and above the regional laws. Moreover, the scope of the law is worded in the widest possible manner, bringing the majority of activities that the protestors were engaged in, within the meaning of threat to national security.

Impact on People’s rights

From the time of conception of human rights, China has been criticized for neglecting its citizens their most basic and inalienable rights. Even in the 21st century, China has taken away the basic rights enjoyed by the citizens of Hong Kong enshrined under their constitution and respected by their pro-democratic mindset by focussing more on its expansive policy. The newly enacted national security law seeks to regulate every domain of human life. Humans all across the world, irrespective of the countries in which they live, are guaranteed certain rights by the international covenants that must be enforced at all times. However, the said act aims to regulate the freedom of expression in its most widespread application i.e. social media and journalism. The act makes registration of journalists with government authorities mandatory and also empowers officials to obtain user data from social media sites without any judicial warrant which is in clear violation of article 17 of the International Convention on Civil and Political Rights (ICCPR). 

Further, the people so charged under the national security law have been deprived of the most basic of laws. Under the act, Beijing’s national security arm has been extended to Hong Kong, this means that the trial of any person so charged under this act can be tried in China within closed doors and without jury, with such trial being not appealable in any other court in the country. This provision in the act not only violates the rights under Article 14 of ICCPR but also the principles of rule of law and those of natural justice that guarantee a fair and public trial. 

Impact on Business

For long, China has been the haven for industries, be it manufacturing or technological. Cheap labour in addition to various incentives provided by the government has attracted companies from all across the globe. However, in recent times a shift has been seen, with many countries like the US and India realizing the large chunk of revenue they are losing out on every day that China remains an industrial powerhouse. Furthermore, the Chinese government has also been accused of the theft of user data from companies working overseas, which has created a major security threat. Amidst all these allegations, the newly rolled out national security law has further incentivized the companies to shift their operations out of Hong Kong. The act aims to extend surveillance and censorship rules to the region of Hong Kong thus bringing it under China’s great firewall. Under these rules, the police officials are empowered to track users online and demand records from internet platforms. Since most of the technology companies pride themselves on maintaining the highest level of privacy possible in reference to user data, these new rules would affect their clientele and reputation in the market. To save themselves from incurring huge losses in the form of a reduction in business, many companies have decided to move their operations out of Hong Kong, resulting in huge losses of revenue to the region. 

Response by the international community

Legislation under scrutiny has not only affected the citizens of Hong Kong but also has  caused a serious stir in the international community, many holding this law to be violative of the basic rights of human persons contained in ICCPR that has been identified as an erga omnes obligation. Article 9 of the ICCPR as well as Article 3 of Universal Declaration of Human Rights recognises personal liberty and freedom as fundamental rights. But by the wide range of activities punishable in the interest of national security under article 8 of Hong Kong’s security law, personal liberty of the individuals are impinged in absolute ways.

Further what caused this stir was the provision under the act granting the Chinese Government jurisdiction over the people who are not even the residents of Hong Kong. Under the act, any person can be held guilty regardless of his nationality i.e. even a foreign national can violate such law when in Chinese jurisdiction. Such a wide view was met with harsh backlash by leaders from various countries with many countries imposing sanctions on Hong Kong and closing down their embassies. In major developments, the US suspended the special status that it had granted to Hong Kong for being a long time trade partner and many countries including the United Kingdom have offered citizenship to immigrants from the island, citing the grave human rights violation faced by them. 

Conclusion 

In such testing times of the pandemic, China has taken advantage of the people of Hong Kong, violating not only international agreement but also various conventions on which the people rely for protection of their rights. Since its induction in China, the people of Hong Kong only wanted a democratic political system for which they have been fighting for two decades. But the expansive policy followed by China has relegated their hopes of freedom to that of mere survival. Once a flourishing island with abundant industries, Hong Kong now faces a decline in business as never before. A place where people had the freedom to express their discontent has now become a place where peaceful protestors are being thrashed and thrown in jails. All this disarray only because of one law has not only brought the whole world together in a fight against the arbitrary rule of China, but has also created a notion of sympathy for the people of Hong Kong.

The author is a student at the National Law Institute University, Bhopal.

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