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June 13, 2020

Is Hong Kong about to Get Its Own Foreign NGO Law in the Name of ‘National Security’?

On May 28, China’s National People’s Congress (NPC) issued a much-anticipated Decision on preservation of national security in Hong Kong. The key paragraph in the short document authorized the NPC’s Standing Committee to “draft laws related to . . . the preservation of national security.” Unsurprisingly, the decision occasioned furious speculation on the ways that the new law, which is expected to be promulgated soon, might criminalize the exercise of basic rights, including the right to protest and the right to criticize the government.

Given the statements emanating from Beijing over the past year, these concerns are well-founded. Senior Communist Party officials and Party-controlled media outlets have repeatedly conflated peaceful protest with subversion, and have regularly accused protest leaders calling for democratic reform of secretly supporting Hong Kong independence. (No evidence has been presented to substantiate that claim.) Protesters who have allegedly engaged in acts of violence or vandalism—and who may well be charged under the basic provisions of Hong Kong’s criminal law—have been labeled “rioters” and even “terrorists.”

In August 2019, for example, Yang Guang, a spokesman for the State Council’s Hong Kong and Macao Affairs Office, referred ominously to “signs of terrorism emerging” from the protest movement. In October, the central government’s Hong Kong Liaison Office got into the act, issuing a statement claiming that Hong Kong was “sliding into the abyss of terrorism.” Such rhetoric makes clear that Beijing views the protest movement as a national security threat, and not as a broad-based and largely peaceful movement that is committed to democratic change.

Still, the NPC’s Decision points to another potential concern: that the new law will seek to criminalize contacts and collaboration between Hong Kong-based NGOs and their counterparts in the United States, Europe, and elsewhere. In other words, Hong Kong may be about to get its own version of China’s 2017 Foreign NGO Law, which set up an extensive and deeply invasive regulatory regime for foreign NGOs operating in China, and damaged relationships between Chinese NGO activists—particularly those working on issues like human rights and legal reform—and their foreign counterparts, including groups based in Hong Kong and Taiwan.

Paragraph II of the Decision signals the Party’s determination to “stop and punish” efforts by “foreign and overseas forces” to “interfere in the affairs of Hong Kong.” For years, Communist Party officials have sought to blame unrest in Hong Kong not on their own broken promises of political reform, but rather on shadowy malevolent foreign actors. Just days before the Decision was passed by the NPC, People’s Liberation Army Major General Chen Daoxiang linked the need for the law to “all kinds of separatist forces and external intervention forces,” which he claimed sought to stir up unrest in Hong Kong.

Since Hong Kong’s anti-Extradition Bill protests began in the Spring of 2019, Party officials have repeatedly claimed that local activists are being manipulated by outside actors. Last month, Xie Feng, a senior Chinese Foreign Affairs Ministry official whose portfolio includes Hong Kong, told reporters that “the troublemakers in Hong Kong cannot be allowed to collude with foreign anti-China forces to impose sanctions on the city and confront China.” Xie argued that a new national security law was needed because “the Hong Kong independence separatists cannot be left unchecked, and the extremists cannot have a free pass to commit violent terrorist acts.” Xie’s remarks strongly suggest that the new law will in fact regulate ties between Hong Kong groups and their foreign counterparts.

Senior Hong Kong government officials have also made similar accusations. In January, Hong Kong Secretary for Security John Lee claimed—also without evidence—that protesters had received training overseas, implying his own support for Beijing’s “foreign forces” claims. Later that same month, Chief Executive Carrie Lam expressed suspicions about foreign manipulation, although she acknowledged that she had not seen conclusive evidence of foreign involvement in local unrest.

In early June, Secretary Lee repeated his assertion that foreign forces had directly supported the protest movement, singling out the United States and Taiwan as key state sponsors. Yet again, Secretary Lee failed to provide concrete evidence to support that claim. Statements like these indicate that the Hong Kong SAR government won’t fight the full and immediate implementation of any new restrictive NGO provisions found in the new national security law in Hong Kong.

To be sure, a number of rights groups around the world have supported the protest movement, either by lobbying their own national-level governments to press Beijing to respect Hong Kong’s autonomy, by offering Hong Kong activists a platform to press their case to the international community, or in any number of other ways. But this support is at the core of international rights advocacy and activism, and should not be considered unlawful “political interference.”

In any case, it’s clear that Hong Kong’s pro-democratic movement is a grassroots campaign created and led by the people of Hong Kong themselves. Efforts to tie activists to “hostile foreign forces” are part of Beijing’s larger push to smear the pro-democratic movement, and seem to almost willfully misunderstand the level of public support that pan-democratic activists currently enjoy in Hong Kong.

If the new national security law being drafted by the NPC Standing Committee does include provisions on NGO activity, the implications for Hong Kong civil society could be significant. Regular readers of ChinaFile’s China NGO Project are all too aware of the extensive registration and approval requirements under China’s Foreign NGO Law, and of the law’s effectiveness in curtailing the activities of key international NGOs in China. In effect, the law has ensured that the Party has oversight and control over the operations and partnerships of Western NGOs working in China, and has cut many grassroots rights-based NGOs off from important sources of funding.

Similar provisions of the national security law tailored to the Hong Kong context probably won’t include an extensive registration regime, or burdensome approval requirements for foreign NGOs operating in Hong Kong. Such rules would place a significant bureaucratic burden on the Hong Kong government, and would more clearly violate the rights protections found in Hong Kong’s Basic Law. Instead, a new law could simply limit Hong Kong NGOs’ access to foreign funding, or impose criminal penalties on Hong Kong and Western groups that engage in activities that “interfere” in Hong Kong politics. Such ill-defined provisions would be ripe for abuse, and might well sever important collaborative working relationships between Hong Kong groups and their international counterparts.

One case in point: Beijing has vociferously criticized Hong Kong activists who lobbied the U.S. Congress to pass the 2019 Hong Kong Human Rights and Democracy Act. Passed by Congress in November 2019, the Act attempts to bolster Hong Kong’s autonomy by giving the U.S. government the power to impose sanctions on Hong Kong officials who violate human rights. The Act also empowers the executive branch to roll back Hong Kong’s special status under U.S. law. (U.S. law treats Hong Kong differently from mainland China on a number of fronts, including such matters as inbound investment, criminal extradition, and visa issuance.) Under Beijing’s new national security law, would lobbying for such sanctions be construed as unlawful collaboration with hostile foreign forces, and thus be subject to criminal penalty?

True, any new restrictions on contacts between foreign NGOs and Hong Kong groups will have to pass muster with Hong Kong’s independent judiciary. And though the courts are under severe strain, most judges have still shown themselves able to issue strong decisions that protect basic rights. Still, the mere existence of a new national security law that includes restrictive foreign NGO provisions would have a significant chilling effect on civil society activity. At the same time, any move by Hong Kong officials to prosecute local groups under the new law would prove costly to those charged, both in terms of time and in terms of resources. In other words, Beijing could achieve its goal of limiting foreign NGO activity in Hong Kong even if cases prove hard to prosecute in practice.

It is likely that NPC Standing Committee staff are drafting the core provisions of the new law right now, but it remains unclear when such a law might be issued. It’s possible that the new law could be promulgated before the end of June; it will almost certainly be in place before Legislative Council elections in Hong Kong in September. Given this compressed timetable, foreign diplomats need to weigh in with Beijing now about the real damage that this new law could do, both to China’s reputation and to Hong Kong’s position as a global city in the heart of Asia.

No doubt it would be best for Beijing to scrap the proposed law altogether. Barring that unlikely outcome, senior officials in Washington, London, and Brussels should push Beijing to make sure that the final version of the law protects basic rights, and that it doesn’t endanger the vibrant collaborations between Hong Kong civil society groups and their counterparts around the world.

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Thomas Kellogg is Executive Director of Georgetown Center for Asian Law. Prior to this position, he was Director of the East Asia Program at the Open Society Foundations. He was also a lecturer in...
Alison Sile Chen is a Ph.D. student in the Political Science department at the University of California, San Diego, studying authoritarian surveillance. Before coming to the U.S. to pursue an...