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28 May 2020

Is China aiming to break the spirit of Hong Kong’s democrats?

The new national security law threatens Hong Kong's autonomy and way of life.

By Antony Dapiran

The city of Hong Kong was stunned, and there was sharp condemnation from the rest of the world. The National People’s Congress in Beijing formalised a decision to step in over the heads of Hong Kong’s duly elected legislature, imposing a new national security law directly on the city. The vote in China’s parliament took place on 28 May and passed with near-unanimous support.

The violent anti-CCP nature of the past year’s protests and increasing calls among some activists for Hong Kong independence no doubt caused alarm in Beijing. At the same time, China’s leaders were clearly frustrated at Hong Kong’s failure to enact its own national security law in the 23 years since the handover. They were also angry at the gridlock and disfunction inside Hong Kong’s Legislative Council (known as “LegCo”), a situation they had decried in recent public statements.

As a result, the National People’s Congress has resolved to task its Standing Committee with drafting its own law, covering secession, subversion, terrorism and foreign interference, and apply it directly to Hong Kong by decree. The law threatens to cast a dark shadow over Hong Kong, its lively civil society, and in particular the extensive global connections enjoyed by people based in a city which built its reputation as a hub for the international flow of goods, capital and information.

The move is on its face a clear violation of Hong Kong’s constitution, the Basic Law, which provides that Beijing may only legislate for Hong Kong in matters of foreign affairs, defence and other matters outside the scope of Hong Kong’s autonomy. The infamous Article 23 of the Basic Law provides that Hong Kong should enact the national security legislation “on its own” – wording that clearly precludes Beijing intervening in the way that it is now doing. The Hong Kong Bar Association also concluded in a statement this week that Beijing “has no power” to impose the new law on Hong Kong, and that Beijing’s plan raises “fundamental constitutional and legal concerns”.

Beijing will no doubt seek to justify the action by claiming that national security is a matter outside Hong Kong’s autonomy, a claim flatly contradicted by the face of the words of Article 23 itself. But that no longer matters. If it was not clear enough from Beijing’s recent statements claiming that provisions of the Basic Law prohibiting interference by central government departments in Hong Kong affairs do not apply when inconvenient to Beijing, it is clear now: the Basic Law means whatever Beijing wants it to mean.

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Perhaps even more alarming, the NPC’s proposal provides that mainland government departments with responsibility for national security will establish branches in Hong Kong to carry out their work. This opens the door for PRC Ministry of State Security agents – China’s secret police – to officially and legally operate in Hong Kong, something they have hitherto not been permitted to do. Democratic Party lawmaker Helen Wong pointed out that the Hong Kong authorities “will not be able to regulate what [those] agents do in Hong Kong”. With this development, the firewall between the Hong Kong and mainland legal and security systems will be completely demolished, with no apparent safeguards, an outcome far worse than anything threatened by the proposed extradition law which ignited last year’s protests.

Reports also suggest the law will ban judges who are foreign citizens from hearing national security cases. This does not sit comfortably in an international city where many judges and other government and community leaders are foreign-citizen permanent residents of the city. It also undermines the arrangement agreed for Hong Kong’s post-handover judicial system, under which leading judges from other common law jurisdictions sit on Hong Kong’s highest court, effectively acting as guarantors of Hong Kong’s judicial independence and integrity, and ensuring the continuity of its common law system.

The immediate casualty of these developments will be Hong Kong’s rule of law: when the constitution can no longer be understood by a plain reading of its words; when a two-tier justice system is introduced, and complemented by a shadowy parallel system of state security agents; when the government instructs the judiciary to “prevent and punish conduct endangering national security”, what hope can the rule of law have? And given that the rule of law is the key feature distinguishing Hong Kong from the rest of China, the broader casualty will be Hong Kong itself: its days as an international financial centre appear to be numbered.

With the benefit of hindsight, Beijing had been signalling this move since at least last November when the Party’s Fourth Plenum resolved to “establish a sound legal system and enforcement mechanism for safeguarding national security” in Hong Kong, without offering any further elaboration. Luo Huining, Beijing’s chief representative in Hong Kong, repeated the point when he took up office at the beginning of this year. Recent months have seen a series of strident and apparently coordinated statements from Beijing spokespeople, Hong Kong government leaders, Beijing’s proxies in Hong Kong such as former Chief Executive CY Leung, and in official media, all reiterating the need for a national security law in Hong Kong. Finally, just days before the NPC this week, CCTV aired a documentary on Hong Kong, accusing Hong Kong’s democrats of colluding with “anti-China forces” to orchestrate last year’s protests.

The US State Department clearly anticipated the move. In early May, Secretary of State Mike Pompeo announced that he was delaying his department’s inaugural report to Congress on Hong Kong’s autonomy under the new Hong Kong Human Rights and Democracy Act, to take account of any actions Beijing might take during the Congress sessions.

This week, when Beijing’s proposal became clear, Pompeo formally certified to Congress that Hong Kong is no longer autonomous from China: “Hong Kong does not continue to warrant treatment under United States laws in the same manner as U.S. laws were applied to Hong Kong before July 1997. No reasonable person can assert today that Hong Kong maintains a high degree of autonomy from China, given facts on the ground.” 

This may trigger extensive consequences under the Hong Kong Policy Act, including the changing of Hong Kong’s special trading status with the US. It remains to be seen what specific actions the Trump administration will take. 

But the US move is unlikely to deter Beijing, which is now looking to reassert its authority forcefully and decisively.

Superficially, Beijing’s move might appear a canny one. Acting over the heads of the Legislative Council forestalls all the opportunities for protest presented by Hong Kong’s legislative process, which protesters took advantage of during last year’s extradition bill fiasco. Presented to Hong Kong as a fait accompli, this leaves few obvious rallying points for protest, and indeed makes protest appear futile.

Beijing nevertheless is prepared for strong pushback, and indeed may even be welcoming the opportunity to reset expectations in Hong Kong. Pro-nationalist Chinese paper the Global Times quoted a mainland political expert who said that the move “will inevitably incur fierce reaction and protests in the city,” but added that, “the central government’s determination would also change the psychological expectations of pan-democratic groups, which might reverse the situation in Hong Kong.”

Beijing’s aim may be to break the spirit of the pro-democracy movement once and for all, and to remake the city in an image after its own desire. But Hong Kong’s protesters have shown a tenacity, and a solidarity, that suggests they will not be so easily cowed. The Hong Kong government may have won a temporary reprieve from public gatherings in recent months due to virus-related reticence, but the anger in the community is palpable and now protests have begun to resume, even in the face of an overwhelming police presence.

More pointedly, with LegCo elections due in September, this provocation seems likely to boost votes for pro-democracy candidates. In the past, the gerrymandered political system has ensured that pro-democracy camp, while consistently winning a majority of the popular vote, only ever obtain a minority of seats. With emotions running high, it seems possible that for the first time public sentiment might even be sufficient for the pan-democrats to overcome those structural disadvantages. If that happens, and the democrats win a majority, then further conflict seems inevitable.

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