National Security Law is not a ‘crackdown’ on Hong Kong’s autonomy

James C. Hsiung points out the legislation is consistent with China’s constitutional scheme and critics distort reality to claim it harms HK’s high degree of autonomy

Critics of China in the Hong Kong Special Administrative Region often resort to a skillful tactic of assigning a scary epithet to a policy or law they detest, to rally popular protests against it, both at home and abroad. Amazingly, they often succeed. One example happened in 2019 to pending legislation designed to extradite fugitive Chan Tong-kai to Taiwan to face trial on a charge of murdering his pregnant girlfriend there. This law would have filled a legal loophole created by a requirement in international law that short of a bilateral existing extradition treaty, Hong Kong could not repatriate a Hong Kong fugitive like Chan to Taiwan for trial. The legislation, therefore, was intended to make up for such a missing treaty.

But opponents of the legislation, for reasons known only to themselves, framed the legislation as a law on “repatriation to China for trial”, invoking the dreadful imagery of “summary arrests” of Hong Kong residents to be tried and imprisoned on the Chinese mainland. The multitude of demonstrators rising to the rally eventually killed the legislation.

In June this year, China’s National People’s Congress enacted a National Security Law for Hong Kong, in order to fill the notorious gap created since 2003 by the abortion, under tumultuous protests on Hong Kong streets, of a proposed security law ordained under Article 23 of the Basic Law, the HKSAR’s “mini-constitution”. In the absence of such a law, the SAR was left vulnerable to subversive activities, often aided by identifiable foreign forces, as happened in 2014 and 2019, among other times.

Now the same critics are playing a similar game of framing the new National Security Law as a “crackdown” on Hong Kong. And it has evoked vibrant international reactions, even condemnation and sanctions against China.

Reacting to the alleged “crackdown” scare, the US Congress unanimously approved sanctions as part of a bipartisan rebuke of China’s “imposition” of the law on the SAR. The Trump administration even revoked the special preferential treatment for imports from Hong Kong. Moreover, the US State Department threatened severe penalties (like visa denials or abridged banking services) for Chinese mainland and HKSAR officials who can be linked to the making or implementation of the new security law.

In the United Kingdom, Prime Minister Boris Johnson denounced the new security law as a “serious breach” of the “high degree of autonomy” status guaranteed to Hong Kong under the Sino-British Joint Declaration of 1984 on the return of Hong Kong to China.

Canadian Prime Minister Justin Trudeau chose to join the anti-China chorus of the Five Eyes group. Parroting US Secretary of State Mike Pompeo, he peddled the same lore that the “one country, two systems” pledge was jeopardized by the new National Security Law. However, as Grenville Cross,

SC, professor of law and former director of public prosecutions in the HKSAR, pointed out, the truth is just the opposite.

When the issue was discussed at a session of the United Nations Human Rights Council, a line of division surged between 27 opposing Western states (and their allies) on the one side, and 73 others in China’s support (mostly non-Western and/or postcolonial states) on the other side.

The various issues in dispute can be grouped under two cardinal questions: (a) the legality (constitutionality) of the Chinese NPC’s role in enacting the National Security Law for the HKSAR; and (b) the sanctity of the HKSAR’s high degree of autonomy.

The answers are to be found in the following documents: (i) the joint declaration of 1984, (ii) the Basic Law of the HKSAR, and (iii) the text of the new National Security Law itself, as well as (iv) China’s Constitution and relevant laws governing the central government’s relations with lower-level governments (including the SARs’) — not necessarily in the same order.

We will take up the question of the legality of the NPC’s role in enacting the National Security Law for Hong Kong first.

The best way to comprehend the constitutional-legal angle of the entire issue is to recognize that unlike the United States federation, China has a unitary system. The concept may sound quaint to the American ear, but the fact is that out of the UN’s 193 member states, 166 have a unitary system of government.

In China as a unitary system, supreme power is held by the central government, which duly devolves power to lower levels of government (i.e., provinces, prefectures, cities, etc.), including autonomous regions (usually populated by large pockets of ethnic minorities) and special administrative regions (like Hong Kong and Macao). The important thing in a unitary system, as opposed to a federal system, is that the central government, following the devolution procedures, may initiate laws (not just policies) for a lower-level government. Hence, the new National Security Law enacted by the NPC for the HKSAR is constitutional and consistent with well-established tradition. And between the central and lower levels of government, there exists a relationship of superordination and subordination not found in a federal system.

In the 1984 Sino-British Joint Declaration under which Hong Kong was returned to China, it was spelled out that the (postreturn) Hong Kong would be “directly under the authority” of China’s central government. And the HKSAR would enjoy a high degree of autonomy, except in foreign and defense affairs, which are the responsibilities of the central government.

Please note the exception, from the HKSAR’s autonomy, of both foreign and defense affairs, under which security matters would naturally fall. A later clause explicitly declares it is the central government’s responsibility to protect Hong Kong’s “public order”, which is synonymous with public security.

Provisions in the Basic Law, the HKSAR’s “mini-constitution”, offers a confirmation of the superordination of the central government over the HKSAR. Article 2 of the Basic Law explicitly states that the NPC “authorizes the HKSAR to exercise a high degree of autonomy”. Please note that the source from which the HKSAR derives its autonomy is not the UK, as Boris Johnson seems to believe. Whereas in Annex III are listed a minimum number of national laws applicable to the HKSAR. Article 18 stipulates that the Standing Committee of the NPC “may add to … the list of the (national) laws” that are applicable to Hong Kong.

Bingo! Should anyone challenge the NPC on its authority to enact a national law (security law included) for the HKSAR, Article 18 is a direct, unequivocal answer.

As we have seen, the NPC-enacted National Security Law for the HKSAR is consistent with China’s constitutional scheme, which places supreme power in the central government, as befitting a unitary system. Other legal documents also substantiate the exception of foreign and defense (including security) affairs from the bailiwick of the HKSAR’s high degree of autonomy. Responsibilities for these matters are reserved for the central government in Beijing. And Article 18 of the Basic Law confirms that the NPC has the authority to create the said National Security Law for Hong Kong.

Critics, playing the familiar game of twisting the reality by skillful name-calling to suit their purposes, manipulated the scare of a “crackdown” on the HKSAR’s autonomy. Once again, they have succeeded in bringing about much international sympathy for HKSAR, and condemnation of China for it. But as we have seen above, all this is a farce, or in Shakespearian language, much ado about nothing.

In the 1984 Sino-British Joint Declaration under which Hong Kong was returned to China, it was spelled out that ... the HKSAR would enjoy a high degree of autonomy, except in foreign and defense affairs, which are the responsibilities of the central government. Please note the exception, from the HKSAR’s autonomy, of both foreign and defense affairs, under which security matters would naturally fall.