Hong Kong National Security Law: Highlighting Provisions Inconsistent with the Basic Law and International Human Rights Standards

            On June 30, 2020, the National People’s Congress (NPC) Standing Committee passed the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (National Security Law), effective immediately.[1] To be incorporated in Annex III of Hong Kong’s Basic Law,[2] the new law criminalizes “separatism,” “subversion of state power,” “terrorism,” and “collusion with foreign or overseas forces to endanger state security.”[3] The law requires Hong Kong’s Chief Executive to handpick judges in national security cases,[4] confers to the PRC central government jurisdiction under some circumstances,[5] and orders the Hong Kong SAR government to “strengthen propaganda, guidance, supervision, and administration” over “schools, social groups, media, and the internet.”[6]

            Given the nature of the conduct being prohibited, the National Security Law violates Hong Kong’s Basic Law. Article 18 of the Basic Law provides that laws includable in Annex III are “confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law.”[7] Article 23 in turn specifies that “[Hong Kong] shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government . . ..”[8] Furthermore, the NPC Standing Committee reserved to itself exclusive jurisdiction to interpret the National Security Law,[9] which is inconsistent with Articles 19 and 158 of the Basic Law granting Hong Kong courts the authority to adjudicate cases and interpret the Basic Law within the limits of Hong Kong’s autonomy.[10]

            The National Security Law was enacted one day before July 1, the anniversary of the handover of Hong Kong and a day when large numbers of Hong Kong residents join marches demanding political reform and universal suffrage every year since 2003. This year, however, Hong Kong police denied applications filed by social groups to hold marches, citing the possibility of violence and public health concerns relating to the COVID–19 pandemic.[11]

            After passage of the law, political groups including Demosistō, Hong Kong National Front, and Studentlocalism, announced their decisions to disband.[12] Joshua Wong of Demosistō, who has testified at a hearing held by the U.S. Congressional-Executive Commission on China and has spoken with international political leaders, expressed concerns over lengthy prison terms and the possibility of extradition to mainland China.[13]

            The National Security Law employs vague terms and is subject to abuse. Specific provisions warranting concerns for human rights violations include the following:

• The law establishes the Hong Kong SAR National Security Protection Commission, which is supervised by the PRC central government and is not subject to checks by any Hong Kong government agency or judicial review.[14]
• The law specifies that PRC national security officials are supervised by the central government, and it further deprives the Hong Kong government of jurisdiction over them.[15] These provisions are inconsistent with Article 22 of the Basic Law requiring PRC government officials to abide by the laws of Hong Kong.[16]
• The definition of “subversion of state power” includes a catch-all category of “any unlawful method” intending to subvert the state’s power by “seriously interfering with, hindering, and damaging” the performance of duties by the PRC central government or the Hong Kong SAR government.[17] The PRC government has a long track record of punishing individuals for advocating human rights and democracy under “subversion” charges.
• The definition of “terrorism” includes a broad description of “other dangerous methods endangering public health and safety,” which can be extended to prohibit public gathering.[18]
• The offense of “collusion with foreign or overseas forces to endanger state security” can adversely impact NGOs that directly or indirectly receive funding from foreign sources.[19] Before the National Security Law was enacted, the PRC government arrested at least two individuals on allegations of funding protests in Hong Kong in November 2019.[20]
• The law is applicable to people who are not Hong Kong residents, as well as to any conduct having an impact in Hong Kong even if it took place outside of Hong Kong.[21]
• Cases in which the central government exercises jurisdiction are subject to the PRC Criminal Procedure Law,[22] which provides for a form of detention known as “residential surveillance at a designated location” (RSDL) applicable to crimes involving “endangering state security” and “terrorism.”[23] The UN Committee Against Torture observed that this form of detention “may amount to incommunicado detention in secret places, putting detainees at a high risk of torture or ill-treatment,”[24] and multiple individuals suffered abuse while being detained under RSDL.[25]