In the last fortnight, the Chinese government has voted on, and accepted, a motion that signals the beginning of an attempt to introduce mainland Chinese national security policies in Hong Kong. Some Hong Kong citizens are concerned because they believe that, if this motion becomes Hong Kong legislation, their democratic rights will be eroded in the name of “national security”. This is not without good reason: the mainland Chinese government has, historically, persecuted political dissidents under the guise of promoting national security. And there are already signs that the Chinese government has sought to undermine freedom of speech in Hong Kong. Five booksellers who sold texts critical of the Chinese government vanished from the territory in 2015, and at least one has stated he was kidnapped by Chinese state authorities.
While there have been protests in the last few days against this new proposed national security law, they are subdued compared to the Hong Kong protests against a proposed extradition bill in 2019. One article in the Washington Post has speculated that this is because this recent round of legislation can be imposed without the consent of the people, via an unusual route that cannot be prevented by citizens’ activism.
We’ll explain exactly what has caused these recent rounds of protests in a moment, but to understand why there is unrest in Hong Kong and its relevance to the UK, it’s necessary to explain a little about Hong Kong’s legal system.
Hong Kong’s Legal System Is More Than A Nod To Its Colonial Past
Hong Kong was previously a British colony, an administrative area ruled by the British government. When Britain’s 99-year lease of the territory ended in 1997, it was returned to the Chinese state. As part of the end-of-lease agreement between the UK and China, certain democratic rights, which do not currently exist in the rest of China, were to be guaranteed for Hong Kong citizens until 2047. This arrangement is often referred to as “one country, two systems”.
Thus remnants from British colonial rule remained in Hong Kong’s legal system after it rejoined China: Hong Kong’s constitution, known as the “Basic Law”, is effectively a compromise between two very different legal and political systems. While its opening articles cite Hong Kong’s dedication to the socialist cause (much in-line with legal documents from mainland China), the Basic Law also establishes political rights for Hong Kong citizens. Article 35 of the Basic Law, for instance, states their right to freedom of speech and assembly:
“Citizens of the People’s Republic of China shall enjoy freedom of speech, the press, assembly, association, procession and demonstration.”
And Article 37 states Hong Kong citizens’ right to protection from unlawful detention:
“Unlawful detention, or the unlawful deprivation or restriction of a citizen’s personal freedom by other means, is prohibited; the unlawful search of a citizen’s person is prohibited.”
In principle, therefore, democratic political rights were to be protected in Hong Kong by Basic Law until the year 2047. After this point, mainland Chinese law could be extended to the territory, but not before. To date, three pieces of proposed legislation sponsored by Beijing have threatened these rights. The first was a 2003 National Security bill (which failed after protests); the second, a 2019 bill that would have permitted Hong Kong citizens to be extradited to mainland China for prosecution (which also failed after mass protests); and the third, a piece of national security legislation currently being considered by the Chinese government.
While the contents of each of these bills are different, the political conflict between Hong Kong and mainland China mostly stems from a dispute over one specific section of the Basic Law legal document: namely, Article 23.
Article 23 concerns the prohibition of treason. Originally included in the Basic Law as a remnant of British laws that aim to protect the monarch, it states:
“The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.”
Hong Kong has, to date, not exercised its right detailed in Article 23 to enact any legislation relating to national security. In 1996, the British colonial government attempted to introduce a bill in Hong Kong that defined the terms “subversion” and “secession” as violent conduct, but the bill failed – in part because of opposition by mainland China. The failure to define these terms in Article 23 has created a political vacuum because if Hong Kong legislation were to define “subversion” as any act of political criticism of or opposition to the Chinese government, then ordinary non-violent citizens could be tried under national security laws on the basis of this section of the constitution. This would undermine their democratic rights as guaranteed under the joint 1997 agreement between China and the UK.
While Article 23 might allow for a wide spectrum of legal interpretation, it does state that Hong Kong legislators should be responsible for passing any measures pertaining to national security. Beijing cannot, under Hong Kong’s constitution, impose any widespread national security programmes on it directly without being in contravention of the joint UK agreement.
The Basic Law states that Beijing can’t impose legislation on Hong Kong directly. However, it may seek to do so via democratic institutions within Hong Kong. Hong Kong’s legislature is run, in effect, by a hybrid parliament: a proportion of the parliament’s seats are decided by direct election, but others are not. This has permitted Beijing a certain level of influence over the Hong Kong law-making body, but not complete control.
The Basic Law also states that mainland Chinese law cannot be applied in Hong Kong unless it is listed in a section of the legal document named Annex III. But there’s a problem: it is possible for laws to be introduced to Annex III by decree if announced by Hong Kong’s chief executive. The current Hong Kong chief executive, Carrie Lam, has already stated she will co-operate with the introduction of national security legislation currently being considered by the Chinese government. If Carrie Lam rules by decree and limits Hong Kong citizens’ democratic rights in the process, she will be seen to have undermined the “one country, two systems” agreement between China and the UK – and to have imposed Beijng’s will on what should be a semi-autonomous region. It’s for this reason that the UK government has widened visa rights for around three million Hong Kong citizens, in a move that has angered Beijing.
So What’s In This New National Security Law?
We don’t know every detail, as China has only submitted a draft resolution to its national assembly in the last fortnight. It was voted on and passed by the national body last week. Once it is fleshed out into a draft piece of legislation, we will have a better idea of what it contains. But we do know that the law concerns national security – so is likely to invoke Beijing’s choice of interpretation of Article 23. There is concern that Beijing will seek to set up its own institutions in Hong Kong for national security. These may involve mass surveillance and may lead to the impingement of democratic freedoms. This is a difficult topic for Hong Kongers, who have already seen facial recognition technology used by the Chinese government in the territory in an attempt to identify protesters.
While other bills sponsored by mainland China have failed in Hong Kong, it looks like this bill is likely to pass. This may have disastrous consequences for Hong Kong citizens, potentially eroding their human and democratic rights. Beijing’s decision to impose national security measures may erode relations not only between China and the UK but also with other Western countries that have high regard for democratic values. The fallout from China’s proposed national security bill may take on a whole new dimension in the UK, as it aims to forge trade bills after leaving the EU’s trading bloc. Will the UK be forced into backing down in its opposition to the imposition of mainland Chinese laws in Hong Kong, or face economic consequences from China? Only time will tell.