Supporters of China’s new security law celebrate in Hong Kong, June 2020
Wang Shen Xinhua / eyevine / Red​ux

Millions of protesters took to the streets of Hong Kong to promote democracy in 2019. The world looked on, astonished and impressed. Now, it looks on in despair: Beijing has imposed a hard-line national security law on the city, bypassing both public consultation and the local legislative process to go after protesters accused of “colluding with foreign forces,” advocating “separatism,” or merely damaging the city’s “premises and facilities.” A struggle for public order has been redefined as a national security crackdown.

China’s “one country, two systems” model—initiated with Hong Kong’s handover in 1997—sought to return the freewheeling city to Chinese sovereignty without destroying the basic freedoms on which it was grounded. Hong Kong was to continue to adhere to its own rule of law, rather than to the version applied in the mainland, where the law is a tool for forcing compliance with Communist Party dictates.

Twenty-three years after the handover, China has abandoned its promise of a separate system for Hong Kong. The city has done its part, serving China as one of the world’s leading centers of finance, culture, and education. But China never fully carried out its commitment to the democratic reform needed to sustain Hong Kong’s wavering autonomy. Now, it has brought Hong Kong fully under the national security state governed from Beijing.

Rising Tensions

The Basic Law, enacted in 1990, provided Hong Kong with a “high degree of autonomy,” allowing for democratic self-rule and the preservation of legal and judicial systems from before the handover. The law supports the “ultimate aim” of “universal suffrage” and commits to maintaining the British-style common law system and applying international human rights covenants. This arrangement was to last for 50 years, during which time the mainland system could not intrude.  

Such avoidance was not to be left to chance. The Basic Law stipulates that mainland Chinese government departments cannot interfere in Hong Kong, nor do mainland laws apply in the city, except under limited circumstances. One article requires Hong Kong to enact national security laws “on its own.” Maintaining public order was likewise to be a local responsibility.

Beijing officials frequently accuse Hong Kongers of not understanding “one country, two systems.” They emphasize the “one country” component but downplay the “two systems.” But the Basic Law’s elaborate model makes no sense except as a formula to protect Hong Kong from the intrusion of the mainland system. Hong Kong, in contrast to mainland China, was not to be a place where those who opposed the government, defended rights, or reported on sensitive topics could land in jail on such charges as “inciting subversion” or “picking quarrels and provoking trouble.”

The Basic Law’s elaborate model makes no sense except as a formula to protect Hong Kong from the intrusion of the mainland system.

The new national security law threatens these protections. But it is not the first instrument to do so. From the beginning, the Basic Law reserved to the Standing Committee of China’s National People’s Congress (NPC) the ultimate power to interpret its provisions. That committee also controls the pace of democratic reform in the region. Hong Kong’s courts have vigorously applied international human rights standards in reviewing local statutes and the behavior of local officials—but they have done so under the oversight of the Standing Committee. Moreover, the Standing Committee has slow-walked democratic reform, leaving in place a system that ensures that Hong Kong’s chief executive will effectively be chosen by Beijing (through a Beijing-friendly election committee). The city’s Legislative Council, moreover, was designed in an annex to the Basic Law to ensure a pro-government majority.

Disempowered in this fashion, Hong Kongers have often taken to the streets to defend their autonomy and the rule of law. The more Beijing interferes, and the more indifference both the mainland and the local governments show toward public demands for democratic reform, the greater the intensity of the protests.

Such tensions came to a head in 2019, when the Hong Kong government put forth a bill that would have allowed China to extradite Hong Kongers across the border to face mainland justice. Hong Kong has extradition treaties with several countries, including the United States, but it never made such an agreement with the People’s Republic of China, because the system of justice there did not meet international standards. The extradition bill sparked such public outrage that first one million, then two million protesters filled the streets in June 2019.  

The government eventually withdrew the extradition bill, but the concession was too little, too late. Rather than backing down, the protesters then added new demands that the government back an independent investigation into police behavior, withdraw severe charges against arrestees, cease to characterize the protests as riots, and advance democratic reform. “Five demands, not one less” became the mantra of discontent.

The authorities responded with increasingly aggressive police actions and excessive criminal prosecutions. A November election for the rather powerless District Councils served as a referendum of support for the protesters, with friendly candidates winning 57 percent of the 2.9 million votes cast and taking control of 17 out of 18 councils. But neither Beijing nor the local government was willing to address popular concerns. Ultimately, only the global pandemic was able to temper the protests.

A Heavy Hand

The Standing Committee drafted its National Security Law for Hong Kong in June, a year after the protests began. The NPC had directed the committee to apply the law directly, bypassing the local Legislative Council. The measure was to “prevent, stop and punish” threats to national security and root out foreign interference, which Beijing loudly (and without evidence) proclaimed to be the driver of the protests.

The law, whose 66 articles elaborate multiple avenues of Beijing’s control, was drafted and enacted in secret, without public consultation. It expressly overrides all local laws that are inconsistent with it, and it effectively amends the earlier Basic Law, although it was adopted without the required amendment procedures. The new law reiterates the Basic Law’s requirement that Hong Kong “respect and protect human rights,” but it provides no reliable mechanism for doing so. A local court would surely be condemned by mainland officials if it dared to declare parts of the new law invalid.

The new law calls for the central government in Beijing to set up an office in Hong Kong for the “safeguarding of national security.” Already, Beijing had declared its liaison office in Hong Kong exempt from the Basic Law requirement that mainland departments not interfere in the city’s affairs. This new national security office is explicitly tasked to “oversee, guide, coordinate and support” local national security activities and investigations. Under such constraints, could any local court declare the acts of the mainland public security officers who will staff it to be in violation of the Basic Law, let alone human rights? A provision of the law goes so far as to exclude local jurisdiction over the mainland officials exercising such duties.

The power to interpret the new security law rests with the Standing Committee, such that the local courts appear to be left with only a circumscribed role to play. The chief executive is to “designate a number of judges” among current or former local judges to hear national security cases. But under the new law, Hong Kong’s government will be required to establish a Committee for Safeguarding National Security, to which Beijing will appoint a national security adviser—an official from the mainland who will effectively oversee many of the chief executive’s national security duties, including, presumably, the designation of security judges. How can these judges act independently when they are appointed under such executive oversight?

The hated extradition law has seemingly snuck in the back door.

Of greatest concern, however, is the new law’s provision for jurisdiction to be removed from Hong Kong courts and transferred to the mainland in complex cases involving a “major and imminent threat to national security.” The hated extradition law has seemingly snuck in the back door. How will ordinary people judge whether their actions meet these vague criteria, whose determination by mainland officials, as previously noted, is not subject to local jurisdiction? The chilling effect on free speech is already evident.

The problems with the National Security Law do not end at the courthouse. Much as the Basic Law did, the new law requires that elected officials swear their loyalty. Based on some official comments, many worry the government may add a pledge of support for the new security law. Many opposition candidates will see such a pledge as a betrayal and will be reluctant to swear their allegiance. And the main crimes the new law covers are vaguely defined: separatism, subversion, terrorism, and “colluding with foreign or overseas forces.” China has often used counterterrorism as a cover for repressing or monitoring minorities and dissidents.

The collusion charge could be used to stifle international human rights advocacy, journalism, and even private meetings with foreign officials—presumably reaching anyone who lobbies for sanctions or support. Under Articles 37 and 38, the law applies to offenses by individuals and corporations, residents and nonresidents, within and outside the region. Those found guilty could in some cases face life sentences.

A little less than a quarter century ago, Beijing invited the international community to treat Hong Kong as separate from mainland China. As an autonomous region that respected the rule of law and protected human rights, Hong Kong enjoyed special trade arrangements, customs agreements, and global immigration that helped make the city a capital of international finance, its economy among the freest in the world. All of these achievements are now at risk. Many democratically minded Hong Kongers now feel that they are left with only two possible moves: to flee or to forgo their freedom to support their political beliefs.  

  • MICHAEL C. DAVIS is a Senior Research Scholar at the Weatherhead East Asian Institute at Columbia University and a Global Fellow at the Woodrow Wilson International Center in Washington, D.C. He was for many years a constitutional law professor in Hong Kong.
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