Rule by law: the future for Hong Kong’s autonomy

On May 21, 2020, China’s top leaders assembled in Beijing for the third session of the National People’s Congress (NPC), where they introduced a draft National Security Law that seeks to extend Beijing’s control over Hong Kong’s sociopolitical institutions in the interests of China’s national security. The draft law was publicly revealed on the second day of the NPC and formally approved on 28 May by a vote of 2,878 to 1. This paves the way for the NPC to fully draft and enforce the National Security Law over Hong Kong, with its completion and implementation expected to take place by August.

International actors have condemned the draft law as an assault on the rule of law in Hong Kong and a violation of Beijing’s agreement under the 1984 Sino-British Joint Declaration to maintain the city’s autonomy until 2047. The UK has declared that it would offer a “path to citizenship” to the 2.9 million Hongkongers eligible for a British National Overseas passport should the law be adopted. The US has also indicated that it would end Hong Kong’s special trade status and sanction key Chinese officials responsible for the law.

China’s state-run media has sought to explain that the law will not jeopardise the “One Country, Two System’s” principle, that the people’s rights and freedoms will be maintained, and that Hong Kong will retain its capitalist economy and legal system. Regardless, it is evident that the law and its anticipated implementation has resulted in a departure from the status quo and is bound to affect China’s reputation as a responsible member of the international community.

NATIONAL SECURITY CONCERNS

The draft National Security Law implements Beijing’s plans to establish a legal framework and enforcement mechanism for the safeguarding of China’s national security in Hong Kong — the effect of which is expected to result in the suppression of civil liberties and the restriction of political participation by pro-democratic elements in the city. The law was described by Beijing as based upon several basic principles necessary for the stability and security of the city: safeguarding national security, upholding the principle of “One Country, Two Systems”, upholding the rule of law, opposing foreign interference, and safeguarding the legitimate rights and interests of Hongkongers.

The law’s adoption centres on Article 18 of Hong Kong’s Constitution (“the Basic Law”), which says Beijing may only apply mainland laws in the city if they are listed under Annex III of the Basic Law. Once listed, the law may be enacted by promulgation by the city’s Legislative Council (LegCo). The use of this obscure method to enact such a controversial piece of legislation guarantees that the law will be enacted quickly, smoothly and with minimal legal interference by pro-democratic elements in Hong Kong.

READING BETWEEN THE LINES

The enactment of the National Security Law has been driven by several factors that have raised fears in Beijing that it is losing control over Hong Kong and that its international reputation has suffered as a result of persisting civil unrest in the city.

Beijing’s shortfall in cultivating the hearts and minds of local Hongkongers demonstrates the government’s failure to rule with legitimacy. With fewer than 10% of youths in Hong Kong identifying themselves as “Chinese,” the number of people identifying as a “Hongkonger” is at its highest since 1997. Beijing’s failure was highlighted during the 2019 District Council elections, when pan-democracy candidates won 90% of the 452 district council seats in an election viewed as a measurement of public sentiment in the city. This has heightened the possibility that pro-democratic candidates may win the September 2020 LegCo elections.

Hong Kong’s LegCo is a unique unicameral legislative body of 70 members, who represent the interests of 35 geographical constituencies, 5 district councils, and business via 30 functional constituency seats. Beijing is concerned that opposition to the draft law could hurt the longstanding, mainland-friendly majority across both constituencies in the LegCo elections, as a victory for pro-democratic elements would be expected to roll-back Beijing’s authority in the city. Consequently, the law’s prohibitions on political activities that endanger national security may criminalise and severely impede the activities of pro-democracy groups, particularly where the existing law bans former convicts from elections for five years (many pro-democratic leaders have been imprisoned on spurious charges).

Further, sporadic anti-government protests over the past 12 months have captured the attention of the international community and negatively affected China’s reputation. Examples of international outrage include Washington’s enactment of the 2019 Hong Kong Human Rights and Democracy Act, Canada’s ongoing processing of Hong Kong asylum seekers, and South Korea’s decision to indict Chinese students involved in defacing pro-Hong Kong Lennon Walls, in direct response to growing concerns over the city’s deteriorating autonomy and human rights record. Taiwan’s international stature as a stronghold of democracy within the Sinosphere has benefited in-part from Beijing’s activities in Hong Kong, with Washington having passed the TAIPEI Act in support of Taiwan’s international diplomatic alliances.

The law also reflects President Xi Jinping’s growing ambitions in the region. Given Xi’s stature as China’s new paramount leader, the successful assimilation of Hong Kong with the mainland both politically and economically under the Greater Bay Area Initiative would be a major piece in his legacy to transform China into a modern socialist country by 2049. Successful integration would further serve as a validation of China’s “One Country, Two Systems” principle as a framework for eventual reunification with Taiwan. However, Xi’s ambitions has been tampered by the articles of the 1984 Sino-British Joint Declaration that guarantee the status quo in Hong Kong for 50 years following its return to China, and label any attempts to undermine the city’s autonomy and freedoms before 2047 as a breach of international law.

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CONTINUING SOCIOPOLITICAL TURMOIL

The NPC’s adoption of the National Security Law represents the premature conclusion of two decades of autonomy in Hong Kong following its return to China in 1997, as Beijing reinforces the centrality of “rule by law” over the “rule of law” in governing the city.

Beijing’s adoption of the law is distinguished from its local implementation. Hong Kong’s Basic Law Committee and Chief Executive must be consulted prior to the law’s adoption, and either may forestall or prevent its implementation through ordinances. Given this constraint, it’s possible that Beijing’s intent is to warn protesters against further actions, and then intervene to compel the Hong Kong government to adopt the law locally only if the 2020 LegCo elections favours the city’s pan-democratic elements.

However, the city’s pro-Beijing government may rapidly implement the National Security Law and pass ordinances to affect the law in the months leading up to the elections. This would capitalise upon the balance of power in the LegCo, where pro-Beijing lawmakers have consistently occupied a majority of the seats, and where pro-establishment politicians recently enacted a coup over the House Committee with the expulsion of pro-democratic lawmakers.

The most likely result of Beijing’s adoption of the National Security Law is a further deterioration in its relationship with Taiwan. During Tsai’s inauguration, and just a day prior to the Law’s announcement, she voiced Taiwan’s rejection of the “One Country, Two Systems” principle in favour of maintaining the status quo and peaceful co-existence with the mainland. Taipei is maintaining a close watch on developments in Hong Kong and has pledged a humanitarian aid action plan that would provide Hongkongers with the right of abode and settlement in Taiwan, a decision that has drawn sharp criticism from Beijing.

Domestic and international investors have expressed fears over whether the city’s status as a free market economy will continue until 2047. In the immediate aftermath of the law’s announcement, investors engaged in a stock market sell-off in Hong Kong that negatively affected companies across the real estate and financial sectors — the Hang Seng Index slipped 4% on May 22. General market instability is anticipated to persist in the face of increased civil unrest and protests opposing the law over the following several months.

In the aftermath of the National Security Law’s implementation, it is to be expected that Beijing will not backtrack from its increased control over Hong Kong. As ongoing developments in the city are tied closely with the elements of China’s core national interests — state sovereignty, national security, territorial integrity — any wavering by Beijing would set a dangerous precedent for the government’s control over other flashpoint regions like Tibet and Xinjiang.