The Decision of the National People's Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security is a congressional resolution passed by the third session of the 13th National People's Congress on 28 May 2020. This resolution authorises the National People's Congress Standing Committee to promulgate a national security law in Hong Kong.
According to the decision, the proposed national security law seeks to prevent external interference in Hong Kong's affairs, criminalise acts that threaten national security such as subversion and secession, allow the State Council of the People's Republic of China to establish a national security agency in Hong Kong when necessary and require the Chief Executive to send the central government periodic reports on national security.
The pan-democratic camp, legal professionals, human rights organisations and politicians abroad have criticised the decision as a threat to the "one country, two systems" principle, the rule of law and civil liberties. In late May 2020, Chinese diplomat Xie Feng said that the laws would only target a minority of "troublemakers" who had endangered Chinese national security. Around the same time, Hong Kong Secretary for Security John Lee said regarding the Hong Kong situation that “terrorism is growing” and calls for Hong Kong independence had become more frequent, which necessitated the bill. Several Hong Kong government officials strove to reassure investors, with Financial Secretary Paul Chan writing on his blog that any harm to investor confidence was due to "misunderstanding" of the law.
Background and legal authority The Hong Kong government in 2003 attempted to enact the National Security (Legislative Provisions) Bill 2003 to comply with the requirement under Article 23 of the Basic Law that it should enact national security legislation "on its own". However, the bill was abandoned after mass demonstrations.
An extradition law amendment bill proposing to allow extradition to China was proposed in 2019, sparking the 2019–2020 Hong Kong protests, later to be withdrawn. The South China Morning Post reported that the central government of the People's Republic of China was of the view that the political climate in Hong Kong would preclude the passage of a bill under Article 23, and so resorted to enactment through the National People's Congress instead.
Unlike the National Security (Legislative Provisions) Bill 2003, an ordinary piece of legislation submitted to the Legislative Council (LegCo) to comply with the constitutional requirements of Article 23 of the Basic Law to enact laws in that connection, the law whose enactment is authorised by the decision would be enacted by inclusion in Annex III, which does not require a vote in the LegCo. The constitutionality of the inclusion of such laws in Annex III, whilst defended in a press release by the Department of Justice and by some members of the legal community, had been disputed by the Hong Kong Bar Association (HKBA).
The dispute concerns what authority Article 18(3) of the Basic Law provides to the Standing Committee (NPCSC) of the National People's Congress. Article 18(3) provides for such enactments in cases concerning defence and foreign affairs, as well as other matters outside the limits of the autonomy of the Region. The Department of Justice's press release, however, stated that "national security is outside the limits of the autonomy of the HKSAR". The HKBA responded that in view of Article 23 of the Basic Law, which requires Hong Kong inter alia to enact laws on its own to prohibit any act of treason, secession, sedition, national security is "within" the limits of Hong Kong's autonomy. The Department of Justice maintained nevertheless that Article 23 authorises national security legislation but "does not preclude" additional legislation by the Central Authorities.
Decision details
The decision, that may be translated from Chinese language as "Decision of the National People's Congress on Establishing and Perfecting the Legal System and Enforcement Mechanism of the Hong Kong Special Administrative Region to Maintain National Security" (), comprises 7 articles, the Chinese text was published by state papers on 28 May 2020. Article 1 restates the importance of one country, two systems and the rule of law, and states that the "state" will "complete" legal and enforcement mechanisms to preserve national security. Article 2 says that the state will stop and punish "overseas forces' use of Hong Kong" for separatist, subversive or destructive activities. Article 3 states that maintaining China's sovereignty is Hong Kong's constitutional responsibility. It further requires Hong Kong to enact national security legislation "as soon as possible", and its executive, legislature and judiciary to "stop and punish conduct endangering national security".
Article 4 requires Hong Kong to establish institutions to protect national security, and provides for a central government presence in Hong Kong to maintain national security. Article 5 requires regular reports from the Chief Executive of Hong Kong on national security. Article 6 authorises the Standing Committee of the National People's Congress to draft a national security law, and then to include it in Annex III of the Basic Law. Article 7 provides that the decision as a whole shall take effect on promulgation.
Chronology Decision
The decision to impose the new law was approved on 28 May 2020 by a vote of 2878 to 1, with 6 abstentions. The NPCSC was therefore authorised to draft the official text of a national security law, and to enact it by including it in the Annex III of the Hong Kong Basic Law; Beijing has said the process will be completed by an "early date". A draft law was submitted to the NPCSC and reviewed on its 19th session from 18 June 2020 to 20 June 2020, details of which were released by state-run Xinhua news agency on 20 June.
Published draft details of the preparing law On 20 June 2020, after a three-day meeting of the Standing Committee – which had been tasked with preparing the new legislation –, Xinhua newspaper published draft details that the Standing Committee had elaborated: presumed settling China's security office in Hong Kong to monitor security, as well as rules about monitoring education regarding national security aspects, prime importance of China's government decisions above Hong Kong government: "If the local laws... are inconsistent with this Law, the provisions of this Law shall apply. The power to interpret this law belongs to the Standing Committee of the National People's Congress."
Enactment
On 30 June 2020, the NPCSC unanimously passed the Hong Kong national security law, which was subsequently gazetted on the same day and officially came into force.
Official text of the security law published
The details of the new legislation were kept in secret, even Hong Kong's Chief Executive Carrie Lam did not see it, until the new law was published only in Chinese language at 11 o'clock in the evening Beijing time on 30 June 2020. The new law in the Chinese language took effect immediately after publishing, the China's State paper Xinhua also supplied text, translated in English "for reference only" under title "The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region". The main articles of the new law can be paraphrased as follows: Chinese government has to set up security office in Hong Kong with its own personnel; The Hong Kong Chief Executive can designate incumbent judges to hear national security cases; Foreign news media and organisations are to be closely monitored; The Chinese government has the right to conduct trials behind closed doors in serious cases; Article 29 must be in effect to prevent inciting hatred against the Chinese or local government; Secession, subversion, terrorism and colluding with foreign countries is to be punished with imprisonment from 3 years to life; Serious interruption or sabotage of electronic control systems for providing and managing public services such as water, electric power, gas, transport, may be considered as terrorism.
Added details about Article 43 emerged after the meeting of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (HKSAR), headed by Carrie Lam, and were published on 6 July 2020; the added details state that: Police can search a suspect's home without a warrant in case of urgency; Police can ban a suspect from leaving Hong Kong; Government can freeze assets of a suspect; Government can monitor the web and ask internet providers to remove information.
The same day, 6 July 2020, Facebook and WhatsApp said they suspended requests from Hong Kong Government about user data.
Domestic responses
Protests
On 24 May 2020 a rally occurred to protest against the proposed security law. It was the biggest protest in Hong Kong since the beginning of the coronavirus pandemic. For the first time in two months, the police deployed tear gas in an attempt to disperse the protesters.
On 27 May 2020, protesters gathered again on the streets to protest against the proposed national security law and the national anthem bill, which underwent its second reading on that day. Demonstrations of varying scale occurred in different districts including Causeway Bay, Central, and Mong Kok. Tear gas and pepper balls were fired and 360 people were arrested that day for unauthorised assembly and other charges.
Analysis of the change in Hong Kong protests The Guardian's China specialists Tania Branigan and Lily Kuo wrote that the protest movement in Hong Kong changed after the NPC announcement of the law, with the mood shifting to one where many Hong Kong protestors are willing and prepared to die for the cause of keeping mainland Chinese influence out, and with calls to find an impactful and permanent solution to mainland Chinese interference, rather than small-scale measures. A rare slogan, calling for complete independence rather than more control, became the unifying chant of the protests, while the concept of "laam chau" gained momentum. This is the ideology of taking Hong Kong down and dragging mainland China with it. One protestor said: "If the Chinese army comes out, we will celebrate. The entire Hong Kong business environment will collapse. If they call the military here, it would ruin Hong Kong and also mainland China's economy".
Crimes committed On 1 July 2021, a Hong Kong police officer barely survived a knife attack from Leung Kin-fai, a Vitasoy purchasing agent and former information officer for Apple Daily. Leung later killed himself, and his suicide note expressed his hatred toward the police, opposition to the National Security Law, and intention to kill an officer. Some Hongkongers saw Leung as a martyr and offered flowers as tribute. The police officer underwent seven hours of surgery and was hospitalised for 19 days.
Economy and stock market
Losses of about 5% were recorded in on the Hang Seng Index (the worst day since 2015), and some Japanese stocks also fell. Carrie Lam denied that the losses were due to the decision, attributing them to usual "ups and downs" in the market. China has sought to assure international investors that they will not be affected. Hang Seng Index regained lost ground a week later.
Migration Some Hong Kong citizens began looking for ways to emigrate and leave Hong Kong, feeling that the law would fundamentally damage their rights of expression and freedom. 10 times the usual number of web searches about emigration were recorded after the decision was announced. The Taiwanese government said that they would help anyone leaving Hong Kong find passage away; China threatened "all means" against Taiwan but also said violence would be a last resort.