The edict Kong Tsung-gan
At 11 p.m. on 30 June, the Chinese Communist Party imposed on Hong Kong what it calls a ‘national security law’. The edict effectively marks the end of the ‘one country, two systems’ period, which was to last from 1997 to 2047 and the cornerstone of which was a strict separation between the governing systems of China and Hong Kong.
Article 23 of the Basic Law, the city’s miniconstitution, obliges the HK government to enact national security legislation. It had always been understood by all concerned, no matter where they were on the political spectrum, that this was how such laws would eventually come about. The prodemocracy movement argued that if such legislation were to be passed, it had to arrive ideally after or at least simultaneously with passage of genuine universal suffrage, for only under such an arrangement would sufficient democratic safeguards be in place to prevent potential abuses. The first mass march of half a million people in post-handover HK in 2003 was against a previous CCP attempt to ram through national security legislation before allowing democracy. Both through street demonstrations and representation in the Legislative Council, the pro-democracy movement has always had the power to block Article 23 national security legislation until its concerns were addressed.
So the CCP decided to disregard entirely the Basic Law (which it authored) and Legco (though it is rigged in favour of the CCP, again according to rules of its own devising) and imposed upon HK something much more draconian than virtually anyone had heretofore envisaged. The HK government wasn’t involved, not even so much as to present the facade of local participation. Top HK government officials, who themselves are unelected puppets of the CCP, didn’t even know what was in the edict. The full text wasn’t even revealed until after it was promulgated.
In terms of both the process of its promulgation and its content, the edict is not a law in any normal sense of the word. Nor does it have anything to do with national security, again in any normal sense of the word. It is entirely a misnomer. It is an imperial edict imposed by the rulers of China upon their colonial subjects and, as such, represents the way the dictatorship sees its relationship with the people it presumes to rule over. CCP and HK government propaganda claims that the edict will affect only a tiny number of people, but nothing could be further from the truth. It is wide ranging and meant to reshape Hong Kong society in the party’s image.
The edict has two specific primary purposes: to put an end to freedom protests, which have been ongoing since June 2019, and to decimate political opposition. The CCP has tried just about every means at its disposal, first and foremost using the Hong Kong police as an occupying force to crush the protests, and found them insufficient. Instead, the political opposition built up steam, to the point of looking to have a real chance of winning over 50 per cent of the seats in the upcoming Legislative Council elections in September, despite the fact that Legco is rigged to ensure pro-CCP dominance. From the CCP’s point of view, something had to be done to head off that democratic eventuality.
The edict strips away the great firewall between China and HK, establishing direct CCP rule. It creates four crimes: subversion of state power, secession, terrorism and collusion with foreign forces, all punishable by up to life in prison. Such crimes as applied
Gianluca Costantini in China have a long history of being used to crush dissent. They are vaguely worded so that they can be applied however the CCP sees fit.
The edict legalises the presence of Chinese security agencies in HK, creating a new Office for Safeguarding National Security, which will reportedly have a staff of hundreds, most likely gathered from various existing state security agencies in China such as the Ministry of Public Security, the Ministry of State Security and the People’s Armed Police, all of which have a long record of systematic rights abuses. This office is not under HK jurisdiction. Indeed, the edict enables the CCP to grant it jurisdiction over ‘serious’ cases, and defendants can be prosecuted under Chinese—not HK—law, presumably in courts in China though details regarding such procedures are notably absent from the 66-article edict and its more than 100 pages of implementation rules.
The edict also reorganises HK government bureaucracy and requires various government bureaus and agencies to serve CCP interests. It sets up a new, secret Committee for Safeguarding National Security headed by the chief executive and a new department for safeguarding national security in the police force. The police are empowered to conduct searches at private properties without a warrant, restrict suspects’ movements, freeze their assets and intercept communications. They can require publishers, hosting providers and internet service providers to remove, block or restrict access to content the police believe may be in breach of the edict. The principle of judicial independence is undermined: criminal trials in ‘national security’ cases will be heard by judges appointed directly and specifically by the chief executive for this sole purpose. Six judges have reportedly already been appointed, but the identities of all but one are secret. The edict requires educational institutions to “educate” students about ‘national security’.
The edict is extraterritorial: not only HK permanent residents in HK but anyone anywhere can be found liable for violating it.
The edict is intended to give the CCP a free hand in dealing with HK people however it sees fit, to keep HK people guessing, to instil pervasive fear throughout society. It is already, as intended, chilling freedom of expression in the media and on line.
The edict has nothing to do with national security. No one in HK has ever threatened the security of the Chinese nation. It has to do with preserving the CCP’s monopoly on power. We the HK people are the CCP’s ‘national security’ threat. We the HK people are the enemy.
The edict grows directly out of the CCP’s fear that it has lost HK. And on that point, its perception of the political situation in HK is correct. The edict is actually an admission of failure: after twenty-three years of rule, the CCP has so entirely lost the consent of the HK people by continually rejecting their demands for genuine autonomy and genuine universal suffrage, as promised in the Sino-British Joint Declaration and the Basic Law, that the edict is the only way it believes it can retain control. This is the paradox of tyranny: it can appear omnipotent and yet it is so weak. The edict represents the failure of CCP rule in HK. It is meant to be an assertion of power, but is a sign of defeat.
On 1 July, the first full day it was in effect, police arrested ten people under the edict. The date is the anniversary of the handover of HK from British to CCP colonial rule and also traditionally the day for a huge pro-democracy march. The march was banned this year, as all protests have been banned for the last six months, but in spite of police violence and mass arrests, an estimated 150,000 defied the ban.
Of the ten arrested under the edict, one has so far been charged in court. His case is indicative of how the regime plans to use the edict. His alleged crimes are terrorism and inciting secession. What did he actually do? He drove a motorcycle flying a flag emblazoned with the most popular protest slogan of the past year through a group of police officers who attempted to block him. The terrorism charge presumably relates to his reckless driving. The slogan on the flag was ‘Liberate Hong Kong, Revolution of our times’. After the edict came into effect, the HK government implied that the slogan is now illegal as it supposedly ‘connotes independence’. That was news to the millions who’ve been shouting it for the past year. For most, it means they want HK to be free, that is, to have genuine autonomy and democracy. Suddenly, these demands, which are actually conservative insofar as they ask the party simply to live up to its legal obligations under the Sino-British Joint Declaration and the Basic Law, are deemed illegal, at least as expressed in that slogan. So the edict is clearly meant to police speech heretofore entirely within the bounds of the acceptable and indeed protected by the Bill of Rights enshrined in the Basic Law. The nine others arrested were all found to be in possession of banners, flags and stickers with statements deemed illegal. If the acts of this twentyfour-year-old motorcyclist flying a flag could constitute terrorism and incitement to secession, then presumably almost anything could.
And that, again, is the point. According to this logic, I too could be charged with ‘separatism’. My recent book about the protests is called Liberate Hong Kong after the slogan the regime has just declared illegal. After the edict was announced (but before it was passed by the National People’s Congress Standing Committee), the book’s original printer refused, without explanation, to