National security overreach is US malady

The US State Department, in its annual report on Hong Kong for the period ending in January 2023, accused Hong Kong of using national security laws to undermine the rule of law and fundamental rights and freedoms.

The reality is Hong Kong has yet to fulfill its constitutional obligation under Article 23 of the Basic Law to safeguard national security. The loopholes in its national security laws prevented Hong Kong from taking effective actions against the instigators and perpetrators of the prolonged political violence in 2019. To counter the clear and swelling national security threat and restore order in Hong Kong, the Standing Committee of the National People’s Congress enacted a National Security Law for Hong Kong in June 2020, and introduced four new offenses to plug the conspicuous lacunas. 

The impact of this law in quelling violence and restoring order was powerful and immediate. However, in view of the evolving threat to national security arising from technological advancement and geopolitical tensions, Hong Kong needs to do more to keep itself safe and minimize any security threat to the country.

Despite the US accusations of alleged abuse of national security laws, few countries can beat the US in creating a powerful national security apparatus with sweeping powers. The concept of nation-al security took center stage in the US in the 1940s, after Japan’s attack on Pearl Harbor. The attack led the US to establish the concept of national security as the non-negotiable standard against which all future foreign policy, and even economic, decisions are to be made. 

The impact of national security on US policymaking is enormous, ubiquitous, and elastic. It can be stretched to apply to any person, entity, country or territory once a national security threat has been identified. Take Hong Kong for example. Hong Kong, a puny territory thousands of miles away from America, cannot conceivably pose any national security threat to the US. Yet on July 14, 2020, invoking multiple statutes and on trumped-up charges of rights and freedoms violations, then-US president Donald Trump declared that the situation in Hong Kong “constitutes an unusual and extraordinary threat, which has its source in substantial parts outside the United States, to the national security, foreign policy and economy of the United States.” A “national emergency” was declared with respect to the alleged “threat” from Hong Kong.

The impact of the National Security Law for Hong Kong in quelling violence and restoring order was powerful and immediate. However, in view of the evolving threat to national security arising from technological advancement and geopolitical tensions, Hong Kong needs to do more to keep itself safe and minimize any security threat to the country

Last October, US President Joe Biden released the 2022 National Security Strategy, and went further than Trump in identifying China as the “only competitor with both the intent to reshape the international order and, increasingly, the economic, diplomatic, military and technological power to do it”. Immediately following publication of this strategy, measures were taken by US agencies to prohibit high-tech exports to China; prohibit foreign companies using American technology from exporting to China and American nationals from working in Chinese high-tech firms. “National security” was invoked to constrain China in every conceivable manner — from curbing trade and investments, tightening export controls, sanctioning central government officials and Hong Kong Special Administrative Region officials, adopting new industrial polices to undercut China’s competitiveness in advanced technologies, to forming new security alliances with pro-US countries, securing more military bases in the Philippines and waging disinformation campaigns and ideological warfare. 

Concerns about the “China threat” are so prevalent in Washington that even TikTok, a popular video-sharing app, is liable to be banned on national security grounds just because it is Chinese-owned.

Taking its cue from the US, the United Kingdom enacted the National Security and Investment Act 2021 to scrutinize foreign investments and business transactions on national security grounds. 

Speaking in a similar vein to his American counterpart, British Prime Minister Rishi Sunak told a US media outlet in March: “China represents the biggest state threat to our economic interests, for sure. It’s a systemic challenge for the world order.” The British Parliament is in the final stages of enacting a new national security law, the National Security Act 2022-23, to overhaul outdated anti-espionage law, and to create new offenses against “hostile state” activities.

Singapore, often regarded as Hong Kong’s peer competitor, is far more advanced than Hong Kong in enacting comprehensive laws to safeguard national security. In 2019, Singapore enacted the Protection from Online Falsehoods and Manipulation Act to counter fake news and disinformation spread through the internet. In 2021, Singapore enacted the Foreign Interference (Countermeasures) Act to empower the government to counter foreign interference through local proxies, designated in the law as “politically significant persons”, and electronic communications. Despite protests from human rights bodies, the US and its allies were silent in warning against curtailment of individual rights and freedoms upon commencement of this new legislation.

Under the International Covenant on Civil and Political Rights, an international treaty and a product of compromise negotiated with myriad countries with differing standards of rights and freedoms, few individual rights and freedoms are absolute. The parties to the Covenant fully recognized that where national security, public order or public health is threatened, laws can be enacted to limit individual rights and freedoms. All national security laws are bound to impact individual rights and freedoms to varying degrees. 

The national security laws in force in Hong Kong are no different from those applied in other jurisdictions, except that they are far less comprehensive and stringent, and have yet to be updated to take account of technological change and threats arising from external interference. As China’s key southern gateway and its most international, open and porous city, Hong Kong has a constitutional duty and a practical need to step up protection against national security threats. Let there be no further prevarication and procrastination, and let this historic mission be completed as soon as is practicable in accordance with international norms and precedents.

The author is convener of the Executive Council and a legislator.

The views do not necessarily reflect those of China Daily.