Hong Kong’s National Security Law 3 years on: what has changed?

Hong Kong’s National Security Law (“香港國家安全法”) was first enacted on July 1st 2020 by the Standing Committee of the National People’s Congress as a response to the 2019 pro-democracy protests triggered by the proposal of a bill that would authorize extradition from Hong Kong to Mainland China. The passing of the controversial law bypassed Hong Kong’s legislature and established four notable crimes: secession, subversion, terrorism, and collusion with foreign organizations. Its implementation has so far been considered as contradictory to the principle of “One Country, Two Systems” and infringing on the basic freedoms promised under the 1984 Sino-British Joint Declaration. As we near the 3rd anniversary of the promulgation of the NSL an important question remains: what are the fundamental changes to civic and political space in Hong Kong and how does this have a wider impact on China’s foreign relations?

Since its implementation, many activists, opposition groups, and civil societies have been alarmed by the new sweeping powers by the NSL. Many are particularly worried about the NSL’s ability to override local Hong Kong law in cases of inconsistencies, notably how Article 42, which restricts the granting of bail to suspects, is inconsistent with HK’s Criminal Procedure Ordinance. Additionally there are also worries concerning the closed door trials, hand picked judges, extraterritoriality, broad powers vested in the police, and a new curriculum for national security. Therefore as of mid 2023, Hong Kong has seen most if not all opposition groups disbanded and high profile democrats detained under NSL charges, major media outlets forced to close, and protests and vigils, such as the annual July 1st march and June 4th Tiananmen Vigil, no longer allowed to continue.

The Effects of the NSL in Civic and Political Spaces

There is no doubt that the civic and political space in Hong Kong is drastically different than it was prior to 2020 despite the government reiterating that the NSL has brought stability and prosperity to Hong Kong. In its 2022 Concluding Observations on Hong Kong, the UN Human Rights Committee determined that the NSL was overriding fundamental rights and freedoms protected by the International Covenant on Civil and Political Rights. As mentioned above, many of the pro-democracy politicians or activists present during the 2019 protests are now either facing NSL charges or have exiled abroad, with the most notable case, the trial of the 47 democrats. In early 2021, 47 democrats were arrested and charged under the crime of subversion under the NSL linked to their efforts to organize primaries for the 2020. Most of the arrested, including prominent activists such as Joshua Wong and Claudia Mo, have been detained for more than two years and have yet to receive bail and are still awaiting trial. Many view the prolonged detainment and lack of jury in the trials so far as an example of the intensifying crackdown on political persecution in the city and a sign of a dwindling independent judiciary. The prolongment of these indefinite trials and arbitrary detentions has resulted in the wider international community to be considered as an undeniable erosion of rule of law in Hong Kong and creating an atmosphere of uncertainty around the stability that Hong Kong’s independent judiciary once brought.

Additionally, the deterioration of press freedom in the city was particularly marked by the closure of the prominent pro-democracy media outlets “Apple Daily” and “Stand News”, and the arrest of the former’s owner, Jimmy Lai. Lai’s charge under the NSL follows the rapid decrease of the city’s Press Freedom Index, with 2023’s ranking being 140th out of 180, a drop from a top position of 18th in the world in 2002. With drastic reduction in outlets that voice out against the government, the atmosphere for freedom of expression and speech has deteriorated and has caused concerns over the government’s ability to rewrite and control narratives that may not necessarily be accurate. The purging of phrases, books, and the latest, a song related to the 2019 protests, has further contributed to the steady deterioration of the basic freedoms that were enshrined in the Basic Law . There are also growing concerns over a whitewashing of Hong Kong’s political history and events that unfolded in 2019 through the implementation of national security education, which has seen the removal of liberal studies as a subject, and the closure of many civil society organizations and  international NGOs. One of the prominent topics that is slowly being erased is the 1989 Tiananmen Square incident with the arrest of vigil organizers, notably Chow Hang Tung, for inciting subversion under the NSL and being foreign agents. Chow, who has been remanded in custody since September 2021, has been the subject of many raised concerns from the Office of the UN High Commissioner for Human Rights and the European Union. Both have highlighted Chow’s arbitrary detention as infringing on international human rights law and an “example of authorities abusing legislation to suppress fundamental freedoms.

Lastly, one of the most significant changes to Hong Kong’s political space has been the revamp of the Election Committee. While Article 68 of the Basic Law states universal suffrage as an end goal to be achieved for the legislature, the past year has seen the proportion of directly elected seats reduced significantly with a new 1,500 committee composed of Beijing loyalists selecting the legislators.The Seventh Legco now only has one self proclaimed non pro-Beijing legislator, out of 90, a decrease from 20 pro-democracy legislators out of 70 in the first Legislative Council.

 Alongside with the electoral overhaul of the District Councils, which were the last remaining political entity to be directly elected by Hong Kong citizens, the city will be seeing a widespread shift in governance from the municipal level all the way up to the Legislative Council. While District Council matters normally receive little attention, following a landslide victory for the pro-democracy camp, the Hong Kong government decided to amend its electoral laws to depoliticize the councils and enable the pro-Beijing camp to secure a higher proportion of seats. The number of District Council seats democratically elected by the public has been reduced from 452 in 2019 to a mere 88 in 2023.The government had reiterated that it was necessary for both district and legislative administration to be “firmly in the hands of patriots'' and to abolish the loopholes that the pro-democracy utilized to incite citizens to vote against the pro-Beijing camp.

Implications for China’s Foreign Policy and Diplomatic Relations

While the amount of international attention concerning Hong Kong has dwindled down in the past two years, it remains on the radar of the major powers, notably the EU, the U.S.,the UK, and international organizations. As mentioned in the previous paragraphs, the Office of the High Commissioner for Human Rights has, since 2019, released several statements regarding the erosion of basic human rights in the city and has explicitly referred to certain cases such as the arbitrary detention of the 47 democrats and the excessive use of force by the police during peaceful demonstrations. Several countries have since implemented various policies concerning Hong Kong, notably the U.S. with their Hong Kong Human Rights and Democracy Act which sanctions Hong Kong government officials and the UK’s British National Overseas scheme which facilitates a pathway to residency in the UK for Hong Kong people.

It can be observed that following the events that unfolded in Hong Kong in 2019 and the passing of the NSL, many major powers have begun to question their position on China as it becomes increasingly clear that Xi Jinping would pose a challenge to the international liberal order and American hegemony. Beijing’s handling of the pro-democracy protests in HK foreshadowed their hardening stance on other issues relating to sovereignty and democracy and ultimately most likely raised their concerns about Taiwan’s situation. Initially, “One Country, Two Systems” was envisioned as a way for China to reunite Taiwan to the mainland. It could be argued that China’s actions concerning their promises made to HK would serve as a blueprint for their intentions with Taiwan. Therefore, the implementation of the NSL could have been interpreted by some as a tipping point that signalled the end of China’s acceptance of views challenging their leadership and their intolerance for any deviance from their view on sovereignty. Thus, following Beijing’s clear deviation from the Sino-British Joint Declaration, major powers have looked to strengthen their security presences in the South China Sea and to expand on diplomatic relations with Taiwan. Additionally, other human rights issues concerning China, most notably Xinjiang, have also become a contested topic in China’s diplomatic exchanges and now play a prominent role in shaping major powers’ foreign policy concerning China.

Looking to the Present and Future of Hong Kong 
As Hong Kong enters its post-COVID era where it aims to revive its status as a major financial hub, many business leaders are increasingly skeptical about whether Hong Kong still offers the security it once did. As government officials continue to be vague about what is legal under the NSL, many are worried about the growing uncertainties concerning Hong Kong’s touted rule of law system. Hong Kong’s previous focus as a “bridge between East and West received much interest from the business community as the city’s continued use of the British Common Law system was seen as a more stable alternative than to do business in China’s civil law system. The Hong Kong’s authorities’ refusal to clarify what is considered illegal under the NSL has undoubtedly cast shadows on the business community’s confidence in Hong Kong’s once trusted rule of law system. Instead, there has been a trend of businesses relocating regional hubs to Singapore or simply relocating into mainland Chinese cities such as Shanghai or Guangzhou as Hong Kong’s judiciary becomes increasingly similar to China’s. While the Hong Kong government aims to use the NSL’s ambiguity to increase their efficiency in regulating soft resistance in the city, it has inadvertently not only created uncertainty in the political sphere but also in the business and commercial sphere. Therefore, Hong Kong’s once trusted rule of law system and independent judiciary no longer promotes the business confidence it once did and many fear that the increasing use of arbitrary use of the court and its laws to achieve political stability will spill over onto the constraining business activities as well.