China’s Proposed New Security Law in Hong Kong – An Explainer
Op/Ed by Chris Devonshire-Ellis
China is in the process of introducing an internationally controversial Security Law for its’ Hong Kong SAR, resulting in widespread commentary in the global media. Much of it has been highly negative and condemning of Beijing, and in particular the “One Country, Two Systems” principle that Beijing signed up to at the time of the handover of Hong Kong to China in 1997.
While under Hong Kong’s Basic Law and the “One Country, Two Systems” principle, Hong Kong is supposed to be responsible for passing its own laws. What has upset many is the suggestion that Beijing is writing the laws, and having a pro-Beijing Hong Kong Government rubber stamp them – thus infringing on the rights of Hong Kong citizens.
Additionally, a suggestion that China could set up institutions in Hong Kong that are responsible for defending national security has caused particular concerns.
But what does the new law say? What China has actually submitted is a draft resolution to its parliament. That resolution will be voted (and probably passed) this coming two weeks. After that, it will be fleshed out into an actual draft law. Details are unclear at the moment, however, the Hong Kong Government has indicated that the Beijing drafted law would make criminal acts out of any of the following:
- Treason – betraying China, attempting to kill or overthrow the government or disclosing official secrets;
- Secession – breaking away from the country;
- Subversion – undermining the power or authority of the central government;
- Terrorism – using violence or intimidation against people; and
- Activities by foreign forces that interfere in Hong Kong.
Let’s have a look at what these criminal acts are, and examine what is the actual norm is elsewhere:
Treason is a serious attempt to overthrow a government, and includes a variety of offenses such as assassination of high officials, disclosing national secrets and so on. It is a major offense in most countries, and can carry the death penalty or life imprisonment in many, including the United Kingdom, the United States, and many other countries. In China, the offense carries the death penalty. And in Hong Kong, it is life imprisonment. Such penalties for treason are the international norm, not the exception. In fact, it would unusual for Hong Kong not to be subject to China’s laws concerning treason.
This is the encouraging of, or deliberate moves to break up a country. Most secession events occur either as a result of civil war, and rarely via democratic procedures. China has had an anti-secession law since 2005; therefore it is not entirely unexpected it wishes Hong Kong to come into line with its own legislature.
The United States takes an ambiguous position on secession, although there have been rulings (Alaska, 2006) that would suggest it would be considered illegal if any serious movement came into being.
Spain, with the Basque separatist movement, effectively considers secession illegal and an imprisonable offense. In many real cases it becomes effectively a moot point, as such movements tend to lead to civil unrest, and violence such as the 30-year war that took place in Sri Lanka before being resolved – and then only after hundreds of thousands of civilian deaths.
The secession issue is a headache for Beijing. Having it not applicable to Hong Kong could mean that the territory becomes a hub for anti-China sentiment not just in Hong Kong, but elsewhere in China. When examined, it is not unreasonable per se for Beijing to be concerned about this and to look at bringing Hong Kong into line with the rest of the national laws on the issue.
Subversion is trickier to pin down as the laws can be applied with very wide-ranging interpretations. Beijing will need to be careful with how it describes this. It is hard to define “Undermining the Government” without being accused of draconian measures.
In Hong Kong, the new law calls for penalties for “abusing the (Chinese) national anthem”. My own stance is that this is unnecessary, however, it should be noted that this is also in place in other countries such as Canada, India, Japan, Malaysia, Russia, Singapore, Philippines, and several African and South American nations. Any national anthem is a symbol of respect, and deliberately showing the exact opposite is disrespectful to the citizens of that same nation, regardless of who it is. It is also worth remembering that President Trump was incensed when various American sports stars recently knelt on one knee rather that stand for the US national anthem. Although minor as a transgression, those who choose to abuse a national song ought to be aware it can be considered highly insulting to others. Abuse of a song is pretty childish. There are better ways to make one’s points of view known. If you wish to protest, just mouth the words and claim a sore throat.
Another oft-quoted issue is the burning of a national flag. It is illegal in China, however again the United States is somewhat conflicted in its own approach to such an act, although President Trump has shown approval to a new motion to criminalize this under the “Flag Desecration Amendment”. Other countries, such as the United Kingdom, are taking similar paths, while it is already an offense in many countries, including most of Europe, India, Japan, Mexico, and New Zealand.
While flag burning is just one example, the emotive issue concerning subversion is defining the exact term. For that we will need to see the draft law, which hasn’t been agreed yet. It is the definition of subversion, or any lack of description of the term, that will prove the most awkward for Beijing to present as binding upon Hong Kong citizens.
All countries have anti-terrorism laws and it is not unreasonable for Beijing to include Hong Kong into its national legislation and protection against this. The issue for Beijing will be defining that element so it cannot be broadly used against citizens creating mischief (such as ripping up paving stones). The definition of weapons may be a key point here in determining a protesting Hong Kong citizen engaged in stone-throwing from a terrorist armed with semi-automatic weapons or explosives.
One should be reminded about the position of the United States Police Force in this, where armed officers have recently been filmed shooting and in some cases killing unarmed or low-risk individuals and used the ‘combating terrorism’ gambit as an excuse for use of firearms.
Activities by Foreign Forces in Hong Kong
A disturbing element of the problems in Hong Kong is that there is hard evidence some ‘pro-democracy’ protesters have been paid HKD 300 each to demonstrate. That might not be much for the average citizen, but it’s enough to sway some teenagers. International media doesn’t wish to follow the activities looking to undermine China, but having lived in Hong Kong and China for 25 years I have seen enough to note they have always been present. They alone are not the reason for Hong Kong’s unrest, but they do seek to make it worse. Again, how wide-ranging measures are to clamp down on foreign subversion remains to be seen. A sensationalist, anti-China media presence does not help matters. More should be done between the Chinese Government and Foreign Press Associations to try and forge workable ties and understandings of their respective roles and the Chinese regulatory position.
Extradition of Criminals from Hong Kong to China
This was the bill that sparked off a lot of the legal debates and handwringing concerning Hong Kong’s autonomy. It has been ‘permanently shelved’ according to the Hong Kong Government following the civil unrest that followed its announcement. The Bill gave mainland China the right to extradite from Hong Kong anyone who had committed (serious) crimes in China. Not having an extradition treaty between China and Hong Kong raises the possibility of the territory becoming a safe haven for dangerous criminals. Most countries have these agreements in place.
As a reaction to to the shelving of the Bill, part of China’s proposed new Security Law for Hong Kong includes the deployment of mainland Chinese security agents, which has created an uproar. It seems apparent to me that had Hong Kong passed the extradition bill, then these undercover methods would not have been considered necessary.
Hong Kong’s Basic Law & “One Country Two Systems”
The problem with Hong Kong’s Basic Law and the “One Country, Two Systems” principle is that such a legal definition or infrastructure had never been previously passed into international law as a workable solution. There has not been any precedent to follow, and it would be foolish to consider the agreement perfect. In fact, my belief is that the system has worked relatively well, however is naturally subject to the natural law of diminishing returns – the further in time one moves away from the original legislation (1997), the less relevant or even useful and pragmatic it becomes. The world changes. The system worked well for about 20 years, and is now in its 23rd – close to a quarter of a century. Frankly, the problem is that these protocols are no longer fit for purpose. It is not realistic or desirable to keep Hong Kong in its current state of sitting between a rock and a hard place. Something has to break the deadlock – and Beijing is just doing this. We will learn what this means when the proposed laws are released.
A Mis-Managed Hong Kong
The real underlying issues with Hong Kong do not rest with the Basic Law, the “One Country, Two Systems” principle, or even with the new proposed Security Law. Part of the problem lies with the successive Hong Kong Governments, politicians, and business leaders who have colluded to gain the maximum traction from newly rich Chinese tourists and investors. The mainland Chinese, with cultural differences spanning different languages, customs, culture, and politics, have been lauded, feted, and placed as a commercial commodity above those of the ordinary Hong Kong citizens. University places are filled with people from mainlanders. Cantonese is now a secondary language, displacing many Hong Kong citizens aged 40 and over, a large proportion of whom do not speak Mandarin. That is a real social issue when the median age in Hong Kong is 44 and over, and accounts for about 56% of the total population.
Hong Kong has a lower import tax rate than mainland China, which has given rise to parallel trading activities. In some cases, entire villages earn their living by buying in Hong Kong and then reselling in mainland China. This sometimes deprives Hong Kong citizens of daily necessities. Most notoriously, during the melamine baby milk formula scare in China, Hong Kong’s imports of the product were bought up by mainland traders to sell at a huge profit back in China. Mothers of newborns in Hong Kong found empty shelves. The Hong Kong Government has not been strict enough in defining legitimate tourists from mainland China and visitors who are essentially black marketeers, restricting such practices, and introducing harsher penalties as required to stamp it out.
Housing is has become unaffordable for low-mid income families. Pensioners who have lived in Hong Kong all their lives are being sent to live in cheaper, mainland old age enclaves such as those in Zhuhai, becoming dispossessed and disenfranchised. It is hardly a surprise that some Hong Kong citizens feel abused and as second class citizens in their own city. Hong Kong’s politicians and property developers have a lot to answer for in creating this mess.
Meanwhile, read the anti-China, end of Hong Kong stories with a large dose of salt. Many of them imply that Beijing wishes to destroy Hong Kong or seriously damage it. But why would Beijing wish to do that to its primary source of overseas capital? Just last November, Alibaba raised US$11 billion from it’s Hong Kong IPO. It makes no sense for Beijing to damage such a Golden Goose – but it does wish to protect it. The laws do not apply of course to anyone who no intention of breaking them – suggesting in part that those who oppose Beijing’s moves are OK with seeing the territory descend into anarchy. That is irresponsible.
China wants to provide security to a territory that rightly belongs to it. Hong Kong has returned to China for the last 23 years. It is now for people to start working together to find common ground, in accordance with that passage of time. Hong Kong is still an amazing business hub – with an excellent business infrastructure. Beijing wishes for stability and prosperity for Hong Kong, and there is no need to make any more from the proposed new Security Law intentions than that.
China Briefing is produced by Dezan Shira & Associates. The firm assists foreign investors throughout Asia and maintains offices in China, Hong Kong, Indonesia, Singapore, Russia, and Vietnam. Please contact firstname.lastname@example.org or visit our website at www.dezshira.com.
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