Why pro-democracy activists are so terrified by Hong Kong’s security law

Full text of new legislation goes beyond the already concerning draft released in May, Adam Withnall explains

Police walk past a burning barricade set up by protesters during a rally against the law in Hong Kong on Wednesday (AFP/Getty)

Activists have for the past month been saying China’s new national security law is the end of Hong Kong as we know it. On Wednesday, having finally seen the full text of the new legislation, one opposition politician in the city said they were holding a “funeral” for the city’s autonomy.

The UK government, which up until now has reserved judgement on the law while expressing its initial concerns, similarly denounced the law as a “clear and serious violation” of Beijing’s commitments to Hong Kong in the 1997 handover agreement.

The reason opponents of the new law are stepping up their criticism is not simply because it has now been passed by Xi Jinping; rather, it is that the final version of the bill goes some way further than indicated by the short draft document presented to China’s parliament back in late May.

From the draft text of the law, we knew it would define and ban acts of “subversion”, “secession”, “terrorism” and “collusion” with foreign forces in Hong Kong. We now know that those definitions are relatively broad, in particular with the concept of “terrorism” outlined in such a way that it is in keeping with Chinese state media using the term to refer to some of last year’s protest violence.

The text reveals that “serious” breaches of the law could carry a sentence of life imprisonment – and that even common cases have a minimum sentence of three years.

Part 6 on “Scope” notes that the laws will apply to anyone who commits an offence within Hong Kong, whether or not they are a resident or Chinese citizen. But it also says that it applies to Hong Kong residents who commit offences outside the city – raising the prospect that any vocal critics of China who live in exile from Hong Kong will face punishment if they ever try to return.

Remarkably, Article 38 of the law states that it applies “to offences under this law committed against the Hong Kong Special Administrative Region from outside the region by a person who is not a permanent resident of the region”. This might practically be seen as a warning to those in mainland China who dare to show solidarity with Hong Kong’s democracy movement. But there is nothing to say China can’t claim an offence has been committed under the law by anyone, anywhere in the world, if their actions are seen as harming Hong Kong’s interests.

Before the law was passed, the UK raised particular concerns about the suggestion that Hong Kong will have to report back to Beijing on its progress in teaching children in schools about the importance of China’s national security. Dominic Raab, the British foreign secretary, called this a “sobering prospect”.

Articles 9 and 10 of the law state that it is the duty of the Hong Kong government to “promote” national security not only through schools, but also through “universities, social organisations, the media, and the internet”.

The Hong Kong Free Press notes that “with a number of public school teachers already having been disciplined, suspended or dismissed due to their perceived support for last year’s protests, government control over school curriculum can be expected to intensify”.

One of the main catalysts for those protests last year was an attempt by the Hong Kong government to pass a law making it easier for some criminal cases to be extradited to mainland China.

After all the struggles to defeat that piece of legislation, this new law appears to implicitly allow extradition from Hong Kong in certain cases – such as where China faces “grave realistic threats”. These, the law says, may be tried in a “relevant court” named by the Supreme People’s Court in Beijing. This is widely being interpreted as referring to courts on the mainland.

Ultimately, it may prove impossible for Hong Kongers to be assured of the fairness of their judicial system even in cases that are tried within the city. The new law outlines a number of provisions for trials of national security cases to be held behind closed doors, more in keeping with the legal system on the mainland than the city’s own.

Article 41 states that, in general, trials “shall be conducted in an open court”. However, it adds that “when circumstances arise such as the trial involving state secrets or public order, all or part of the trial shall be closed to the media and the public”.

The law states that the decision on whether or not a case relates to national security or includes state secrets will be made by Hong Kong’s chief executive, and that decision will be “binding on the courts”, rather than it being left up to the courts to decide.

Finally, the legislation makes clear that Hong Kong’s beloved mini-constitution, its Basic Law, is to be overridden by the national security law passed in Beijing in the event of any inconsistencies.

Analysts have noted that the new law states bail shall not be granted to criminal suspects unless the judge has “convincing reasons” they will not continue to offend. This appears to contradict Hong Kong’s own laws, which require a presumption in favour of bail in keeping with the broader principle of presumption of innocence.

By asserting the national law’s superiority in this way, the bill sends a clear message to those who would still hold out hope for Hong Kong’s autonomy or even independence: that Beijing is king.