Updated: Aug 1
The recent escalation of geopolitical tensions, amid Covid-19, is sparked by the Chinese Parliament: The National People’s Congress’s move in effectuating its standing committee to draft a new National Security Law which, as a matter of fact, contravenes the Basic Law of Hong Kong, by extension, the overarching principle of “One Country, Two Systems” and, of course, the Rule of Law.
Hong Kong’s contrived yet unique Constitutional arrangement has its origins in Britain’s handover of the territory to the People’s Republic of China. But surprisingly, the transfer of power was subject to a “Mini Constitution”, also known as the Basic Law, which is set to expire in 2047, conferred a great deal of autonomy to Hong Kong. This prerogative enables the Hong Kong Special Administrative Region (HKSAR) to preserve its pre-handover era Capitalist Structure, Civil and Political Rights, likes of which include Freedom of Speech and Expression, Freedom of Assembly and Freedom of Equity. In addition, unlike the mainland, the special administrative region is also provided with an independent judiciary, executive and a dual-tiered quasi-representative form of government.
It is to be noted that not much has been revealed about the content of the impugned legislation. As prescribed by Article 23 of the Basic law, it will be premised on criminalizing any act of Subversion, Secession, Foreign Interference and Theft of State Secrets. In view of this predicament, a PRC spokesperson stated that “the said legislation targets a very narrow set of acts that seriously jeopardize national security and It has no impact on Hong Kong’s high degree of autonomy and the rights and freedoms of Hong Kong residents or the legitimate rights, interests of foreign investors in Hong Kong”.
Although not a lot is known about the text of the legislation, It is not difficult to see that the aforementioned acts of “Subversion”, “External Interference” and “Secession” can encompass a plethora of acts, in the sense that it could confer excessive discretion to the Government which in turn could undermine the Rule of Law. This issue is further exacerbated by the fact that the right to interpret the Basic Law is vested with the Chinese Government which greatly proliferates chances of Arbitrariness. Given the inadequacy of information regarding the text or the content of the legislation, it is rather unclear as to how the final text, its scope of application and safeguards will turn out. But prominent legal experts are of the view that the security law must conform with the Basic Law of the Special Administrative Region. Failing to do so would render the legislation unconstitutional as mentioned explicitly under Article 18 of the Basic Law.
The issue at hand, when looked at from a practical standpoint, clearly indicates that in order to secure the objectives of the impugned law, the Chinese government might also set up parallel enforcement agencies consisting of law enforcers from the mainland in the Special administrative region operating alongside its domestic counterparts. But in order to conform with the interrogable principle of “One Country, Two Systems”, it is highly imperative that mainland enforcement and security personnel discharge their duties in accordance with the Basic Law which is overwhelmingly predicated on the Common Law containing core judicial values like presupposition of innocence and Proving of Guilt or Malice beyond one’s reasonable doubt.
Furthermore, it has also come into light that Judges holding Foreign Passports cannot adjudicate cases pertaining to the National Security Legislation. There is nothing in the text of Article 23 that makes mention, in any manner, of such inhibition. It is a known fact that in the past, even in cases of national importance, Judges holding foreign passports weren’t restricted from sitting in such cases.
The security has been passed at a time where Beijing’s Morale is at an all-time low in Hong Kong and Given the recent protests, there is no doubt that the said law would be welcomed with utmost deploration where it is pretty obtrusive that it is a deliberate attempt to diminish the contours of Hong Kong’s governmental arrangement. This intent is evident if one takes into consideration that the security law has bypassed the Hong Kong’s Parliament and as directed by Article 18, prior to including the law in Annex 3 of the Basic Constitution, the standing committee must consult both the Basic law committee and the Hong Kong government. They shall also verify if the proposed law is said to be within the purview of Article 18 and to ensure whether it can substantially alter the political arrangement of the special administrative region.
It should also be further noted that Article 18 of the Mini Constitution further requires the said law after approved by both the Hong Kong Government and the Basic Law Committee, must be implemented in the form in the form of local legislation or by an order passed by the Hong Kong government. This explains even if Beijing deploys Mainland agents to further the objects of the law, it is necessary that they should perform their duties as directed by the Basic Law.
But what makes things even more complicated is that, on one hand, considering the fact that the impugned provision is criminal in nature, the security law is not consistent with the Criminal Code of Hong Kong and requires the Hong Parliament itself to enact a new national security provision. In addition, Article 23 itself explicitly enumerates that the Hong Kong Parliament shall enact its own security law.
In view of the aforesaid inconsistencies, Beijing has cleverly listed the said provision in Annex 3 of the Mini Constitution. It enables the Chinese government to pass the desired law by a decree which can now bypass the Hong Kong’s Legislature and Chief Executive. This coupled with the fact that the right to interpret the Mini-Constitution rests with China sheds light on the notion that the current legal materials cam be textually exploited to enhance the interests of the CCP.
The recent developments indicate that China, leveraging its every bit of constitutional powers, has been slowly bridging the gap between the Mainland and the Special Administrative Region. But, until the final draft is revealed, one can not predict the political repercussions that can loom in Hong Kong.