China’s National Security Bill Threatens Hong Kong’s Autonomy: A Constitutional Angle by: Aman Gupta

China’s Parliament on May 28, 2020, passed new legislation empowering the National People’s Congress (NPC) in Beijing to draft National Security laws for Hong Kong Special Administration Region (SAR). The legislation was passed with an overwhelming majority of 2,878:1 vote.

Sneaking into the past

Hong-Kong, colonialized by Britain at the dusk of the Opium War in 1840, was secured by Britain on a 99 year lease period in 1898 and was subsequently returned to China in 1997 by the then Prime Minister Margaret Thatcher to being governed on a framework of ‘one country, two systems’ backed by its Mini-Constitution also known as Basic Law, enacted in 1997, as enshrined in the Preamble to the Basic Law. This Basic Law defines the autonomy of Hong Kong as it gives the SAR “executive, legislative and independent judicial power” but retains the control of the defence and foreign affairs with the Central Government of China. It is the legislative autonomy, which has been granted to the SAR by Article 17 of the Basic Law, has been compromised since the National Security Bill for Hong Kong has been approved.

Constitutional Issues

The Bill seeks to empower China to legislate dominating laws under the garb of safeguarding the National Security. Article 23 of the Basic Law of the Hong Kong SAR of the People’s Republic of China or the Mini-Constitution empowers Hong Kong to enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government to prohibit the probable political activities in the region. Due to the aforesaid Bill, China can now control any seditious activities against its central mainland by passing a law in the name of national security thereby blatantly violating the very objective of Article 23 of the Mini-Constitution. Even Article 22 outrightly prohibits any department of Central People’s Government to interfere in the affairs where the SAR administers on its own in accordance with the Basic Law. Article 23 is the subject matter of Hong Kong with no ties to the Central People’s Government; therefore, the Bill violates the objective of Article 22 as well.

Article 18 states that the National laws of China do not apply to Hong Kong SAR unless listed in Annex III to the Basic Law which is specific to defence and foreign affairs. The standing committee of the NPC may add to or delete laws under this Annex but it shall be only possible if a consultation has been done with the committee for the Basic Law of the Hong Kong SAR and the government of the region but the NPC defies such requirements in the current Bill. Through this Bill, the government aims to enact laws to prevent, stop, and punish any activity that fosters separatism, subversion of state power, or carrying out terrorist activities in the region by routing it through Annex III without any consultation mentioned above. Non-fulfillment of such a requirement is again a blatant violation of the Basic Law.

Article 22 provides that if there is a need for departments of the Central Government to set up offices in the Hong Kong SAR, they must obtain the consent of the government of the region and such offices shall abide by the laws of the region. The Bill states that the organs of the Central People’s Government in order to preserve and strengthen National Security are to set up institutions in the Hong Kong SAR. The Bill does not indicate any intention of procuring a prior consent from the government of the SAR and protection of National Security through the National Laws of China would be an indirect violation of the Basic Law.

The Bill has left the executive council of Hong Kong SAR in the state of a conundrum since it urges the region to complete legislation for preserving National Security in consonance with the policy of ‘one country, two systems’ and also empowers the NPC itself to draft laws in the same aspect. Such a policy would create a dubious atmosphere, weakened enforcement, and executive havoc. The Bill puts at stake the autonomy of Hong Kong through its arbitrary and unjustified measures. Recent incidents of Chinese invasion upon Hong Kong’s autonomy manifest that this Bill is another vehement step towards subjugation.

Ripple Effects

The approval of this National Security Bill has led to internal disturbances in Hong Kong as well as external distress. The U.S. Secretary of State, Mike Pompeo, declared that Hong Kong no longer enjoys autonomy from China, thereby stripping it of its special status under US Law. Further, Hong Kong would be unable to acquire economic and trading benefits from the US as earlier it used to. The result of the US-China Trade War and subsequent sanctions would directly be a blow to the economy of Hong Kong and its status as one of the most advanced economic centers. The fate of Hong Kong depends upon the international reaction to its current situation.

Unfortunately, the Basic Law of Hong Kong has an expiry of 50 years i.e. until 2047. The policies of today shall shape the tomorrow for Hong Kong. China under the garb of safeguarding the SAR from ‘foreign interference’ aspires to establish a political hegemon and curb the autonomy of Hong Kong whereas Hong Kong through its pro-democracy movement aspires to live as an autonomous state of the People’s Republic of China. The status of Hong Kong post-2047 is a conundrum to solve but it seems that Hong Kong who was expected to establish a model for authoritarian China now is being modeled after China itself.