Many United States and other “Five Eyes” commentators are now in little doubt: Hong Kong’s new National Security Law amounts to a sinister grab for more power over the HKSAR by Beijing. Such critical reviews prominently rely on Sino-phobic activism wrapped around some level of analysis. This analysis depends, too often and too much, on sweeping derision of the National Security Law. Predictably, these tilted reviews pay scant attention to key circumstances, in particular, the terrible months of continuous, highly destructive political rioting that began in June 2019, all of which unfolded after the October 2018 US declaration (according to leading American media outlets) of a “new Cold War” directed against China. This profoundly relevant context is, revealingly, usually minimized or simply not discussed.
We have had far too many, essentially scornful, reviews of the National Security Law jumping to scary conclusions and too few serious, contextual studies. As a means of investigating what the real purpose of the National Security Law may be, this is bleakly unhelpful. The new National Security Law clearly has a dominant problem-solving focus — not a power-grab emphasis. The problems it deals with are very serious in scope and impact. Addressing them is what has governed its drafting.
In fact, this is the same pattern we have seen with the limited number of Article 158 interpretations of the Basic Law over the last 23 years. Each of those five interpretations may have been controversial, but each, equally, has been fundamentally closely focused on solving real-world, particular problems.
In a meaningful sense, it is fair to say that the new National Security Law was “drafted” by Hong Kong’s most radical, violent protesters and their advocates and most active supporters — whether they are honest enough to admit this or not. As you look through all the National Security Law provisions, intensely fierce images from 2019 readily come to mind in each case.
A power-grab law would have looked very different. Such an initiative might have simply applied the complete mainland National Security Law to the HKSAR, for example.
With the new National Security Law, it is clear that significant, thoughtful effort has gone into its drafting. The aim has been to strike a watchful balance between robustly protecting national security and preempting all secessionist claims, while allowing Hong Kong to thrive, once again, as a special administrative region. Priorities have been: to deal with the threats to national sovereignty and territorial integrity posed by the horrific violence and destruction witnessed in 2019; to maintain the high level of autonomy enjoyed by the HKSAR; and to reset — and strengthen — the foundations of the “one country, two systems” regime.
Is there any such thing as a perfect law? No — and the new National Security Law is no exception. All new laws can only cover so much and their provisions need to be tested in the real world, over time, to form a sound picture of how they function. We face exactly the same prospect with the new National Security Law. This is normal.
One immediate, practical way to get a feel for the need for the new National Security Law is to imagine that it had never been passed.
We recently saw a return of intimidating political crusading — despite the grave, increased COVID-19 risk — in Yuen Long on July 19. This, today, is the exception rather than the rule, however. The National Security Law has, thus far, plainly had a powerful deterrent impact.
Without the National Security Law, though, we would very likely have returned, by now, to a cycle of repetitive, very violent political protesting. The increased risk of swiftly accelerating the spread of the COVID-19 pandemic in Hong Kong through widespread rioting is grimly clear. The most extreme “burn together” radicals might well feel the more COVID the better, so as to squeeze Hong Kong severely and put yet more pressure on Beijing.
It is useful to consider another recent (offshore) practical example. Just as various US commentators were thundering human rights pieties about how sinister the new National Security Law was, back at the ranch, an awkward American national security enforcement action was unfolding. In mid-July, camouflaged and unidentifiable (this is legal) federal agents, dispatched by Washington, arrived in Portland, Oregon. They rounded up peaceful activists protesting against racial injustice and thrust them into unmarked vans. According to a reporter from The Guardian, he witnessed a “nightmarish scene” where protesters were snatched and arrested “with no explanation”. He went on to note that, “If this were happening in Venezuela or Iran, the US government would be threatening international sanctions”. And imagine the outcry from the liberal Western media were it to happen in Hong Kong!
We learned last year how the exceptional, collective sense of “militant virtue” shared across massed, violent radical protesters and their sponsors and backers developed swiftly to pose a grave threat to the constitutional order of the HKSAR. Moreover, the aim of some within this group was to threaten that order across China, if they could. The National Security Law is a pivotal component in the response to this fateful experience.
Let’s be clear, the National Security Law is a radical and controversial law. But it is a methodically drafted law which has been applied in full accordance with the Basic Law to serve, following 2019, a conspicuously legitimate purpose. Frankly, it is a law that Hong Kong badly needed.
The author is a visiting professor in the Faculty of Law, the University of Hong Kong.