Hong Kong’s high degree of autonomy in the balance

On 1 July 2017, on the 20th anniversary of Hong Kong’s reversion to Chinese rule, President Xi Jinping laid down three ‘red lines’ for handling the relationship between Hong Kong and the central government. Crossing them would be met with a resolute response. Three years on, that response has come to pass. While Hong Kong’s new China-mandated national security law may be fit and proper in a strictly constitutional sense, China should keep in mind Hong Kong’s common law practises and sensibilities while crafting its fine print.

On 28 May, China’s parliament endorsed a National People’s Congress Standing Committee (NPCSC) decision to legislate a tailor-made national security law for Hong Kong — after 23 years during which the local authorities failed to pass their own Article 23 variant of the law. Following its passage, the law will be added to Annex III of the Basic Law and applied locally by way of promulgation rather than the local legislation route, to sidestep delays like that faced by the national anthem law, which too was listed in Annex III in November 2017.

The potentially landmark Hong Kong Legislative Council (LegCo) election this September is a key factor driving the timing of Beijing’s push to impose the law. The central government was shaken by the violent protests last year, and the attendant perception of US incitement. It was exasperated furthermore, last November, when the Hong Kong Court of First Instance drew a narrow interpretation of the chief executive’s colonial era-remnant emergency powers and shot down a ban on wearing facial coverings at unauthorised protest gatherings (the Court of Appeal restored the ban in April 2020). While its supporters still enjoy a working majority in the LegCo, Beijing appears determined to plug the territory’s security and intelligence loopholes.

A significant purpose of the NPCSC’s proposed national security law, alongside the establishment of a framework for prosecuting national security crimes, seems to be to authorise and facilitate the establishment of an intelligence body within the Hong Kong Police Force, modelled on the now-disbanded Special Branch. A similarly embedded organ had performed similar duties on behalf of Hong Kong’s British colonial rulers.

The proposed national security law breaks from the spirit of the ‘one country, two systems’ principle. Article 14 of the Basic Law reserves the responsibility ‘for the maintenance of public order’ to the local authorities, and Article 23 requires them to enact laws that prohibit treason, secession, sedition, subversion and foreign interference. Article 22, overarchingly, enjoins the central government to desist from interfering in local matters.

Article 18 of the Basic Law does envisage that defence and foreign affairs as well as ‘other matters outside the limits of autonomy’ (which are to be listed in Annex III and applied locally) fall within the jurisdiction of the central government. But this provision begs the operative question: isn’t the passage of a tailored national security law for Hong Kong, which criminalizes the acts listed in Article 23, a matter that falls within — not outside — the limits of Hong Kong’s autonomy?

Beijing could contend that it enjoys concurrent jurisdiction with regard to Article 23 crimes and the ‘maintenance of public order’, especially when its breakdown impinges on the state’s core interests and duties. In the Russia–Ukraine case in April 2019, the WTO panel ruled that ‘maintenance of law and public order internally’ was a quintessential function of the state that impinged on the state’s ‘essential security interests’.

Equally, the central government could contend that the presence of the mainland’s intelligence organs in Hong Kong is not inconsistent with the Basic Law’s ‘defence and foreign affairs’ remit. The US State Department considers intelligence gathering activities at sea to be a subset of ‘military activities’, insofar as its engagement with the Law of the Sea Convention’s provisions. Besides, the People’s Liberation Army (PLA) is already garrisoned in Hong Kong via the Annex III route, so the presence of intelligence services is not a significant departure from the status quo.

The proposed law incontestably accords with the letter of the Basic Law. In instances that Beijing deems as falling within the purview of central government–Hong Kong relations — and the local application of an Annex III law by promulgation categorically falls within this purview — it enjoys the power to frame the legal limits of the territory’s autonomy. This includes the right to interpret that the NPCSC-authored national security law for Hong Kong is a matter that falls outside the limits of the territory’s autonomy. Article 158 vests this power of interpretation in the NPCSC, and Hong Kong courts are required to seek an interpretation of the relevant act or provision from the NPCSC through the territory’s Court of Final Appeal.

At the end of the day, the national security law will not, and cannot, be ruled unconstitutional.

This wide interpretive latitude obliges Beijing to craft the proposed law to Hong Kong’s common law principles and sensibilities. Its scope must be limited to the express legislative purpose, the offenses defined with reasonable certainty, and its investigatory powers governed by local law, with trials conducted in open court and guilt established beyond a reasonable doubt. The law must not amend Hong Kongers’ fundamental rights and duties. And mainland agents on Hong Kong soil must abide by the territory’s laws, like their garrisoned PLA counterparts.

The proposed national security law comes at a critical juncture in the territory’s post-reversion history. While its impact on Hong Kong’s rights, freedoms and lifestyle may be less than what most have prophesied, this can only be confirmed once the legal text is finalized. The ‘high degree of autonomy’ promised hangs in the balance.

The article was originally published on the website of the East Asia Forum June 26, 2020.