The National People’s Congress, Beijing. Photo credit: Mirko Kuzmanovic / Shutterstock.com.
On May 22, 2020, the National People’s Congress (NPC) in Beijing announced it would debate a new national policy for Hong Kong, a draft piece of legislation with an imposingly long and misleadingly soporific title: “Decision of the National People’s Congress on Establishing and Completing the Hong Kong Special Administrative Region’s Legal System and Implementation Mechanisms for the Preservation of National Security.”
The text came as a shock. Some observers argued that Xi Jinping and the Chinese Communist Party (CCP) had activated “the nuclear option” by laying out a legal justification for abrogating the 1990 mini-constitution that gave Hong Kong’s Legislative Council sole authority to pass laws for the territory.
Others feared the announcement signaled Beijing’s willingness to risk a confrontation with the United States, given recent demands from the Trump administration and Congress that China preserve Hong Kong’s autonomy.
Still, others worried that Beijing was now prepared to use brute force to crush the protest movement that had rocked Hong Kong for months before the current pandemic emptied the streets. The “decision” suggests that Beijing will threaten protesters not simply with a charge of incitement to riot (the charge many opposition leaders currently face), but with far more serious charges, like sedition, or terrorism.
Still, it’s unclear how events will unfold.
No actual legislation is forthcoming immediately. One CCP publication suggested a timeline of six months, which would mean no crackdowns based on the security law until later this year.
That is small comfort for opposition leaders, who are already facing charges related to last year’s protests. Nor it is reassuring for the many other pro-democracy activists in Hong Kong, who now must face a likely future in which China’s feared security forces patrol the streets of their city.
“Can they do this?” was the immediate question on the minds of many people last week.
By a strict interpretation of Article 18 of Hong Kong’s Basic Law or “mini-constitution” of 1990, it is possible to expand the list of People’s Republic of China national laws that apply to Hong Kong. Those laws, listed in Annex III of the Basic Law, are supposed to cover only areas of national defense, foreign affairs, and “other matters outside the limits of [Hong Kong’s] autonomy,” as one passage vaguely states.
Last week’s “Decision” authorizes the NPC to pass a law that would “prevent, prohibit, and punish” conduct involving acts of separatism (e.g., calls for secession), subversion of state power, terrorism, and “activities by foreign and overseas forces that interfere in the affairs” of Hong Kong. Once passed by the NPC, the new law would then be added to Annex III.
Another article from the “Decision” authorizes agencies of the central government to set up operations “relevant for the protection of national security.” This was the clause that many have interpreted as giving the Ministry of State Security and related agencies the ability to operate openly in Hong Kong, collecting intelligence, and dealing with suspects as it does in China (using digital surveillance, secret detention, and torture, among other tools and techniques.)
The draft legislation piously declares that “the state will unflinchingly and accurately implement the principles of ‘one country, two systems,’ ‘Hong Kong people ruling Hong Kong,’ and a high degree of autonomy.” Apologists for the legislation have noted that under Article 23 of the Basic Law, the Hong Kong government was required to pass some form of national security legislation related to anti-state activities. From China’s perspective, the Hong Kong government has failed to fulfill a promise made long ago. Moreover, the apologists note that the Chinese government is only following the best global securitization practices, as defined by the United States after 9/11, when America passed its own “Patriot Act” (permitting counter-terrorism operations in violation of constitutional rights of privacy).
Of course, the actions already taken surreptitiously in Hong Kong by Chinese security forces over the last decade give the lie to this reasoning. It was peaceful critics of the CCP and those publishing controversial books about CCP leaders — not terrorists — who were secretly captured in Hong Kong, and taken across the border for prosecution or punishment.
There’s plenty of evidence that this crackdown was in the making well before COVID-19 became a global crisis. In a speech in December 2019, Xi signaled his intention to deal with unpatriotic elements in Hong Kong. In the months that followed, he appointed two proteges to serve in leadership positions with direct responsibility for Hong Kong: Luo Huining became the director of the Central Government Liaison Office in Hong Kong, and Xia Baolong, notable for his suppression of Christian churches in Zhejiang province in 2015 and for having ordered the removal of crosses atop some one thousand churches, took over as head of the Hong Kong and Macao Affairs Office.
Had the National People’s Congress met at its usual time in March of this year (it met instead on May 21, delayed for two months by the pandemic), it’s quite likely that the same measures outlining a future national security law in Hong Kong would have been announced at that time.
On May 28, the NPC legislature voted in favor of the draft “Decision.” The Standing Committee of the NPC will now work out the text of a formal law in subsequent sessions. Its sessions are usually scheduled at two-month intervals. Under China’s legislative process, a bill becomes a law after three successive readings at Standing Committee meetings. This is how the six-month framework was calculated for Hong Kong’s national security legislation. If passed in this time frame, the law could come in to force by late November of this year.
There’s a possibility that the May 22 announcement was a kind of shot across the bow, warning Hong Kong’s legislature and giving it the window to pass its own national security legislation before the NPC did it for them. This amounts to legislative blackmail of sorts, giving the Hong Kong legislature the option of a fig-leaf of autonomy even as it caves to demands from Beijing.
This timeline for passage of the national security legislation also gives protest organizers the window of opportunity to take to the streets in hopes of garnering international support for their cause. But even now, under the colonial-era Emergency Regulations Ordinance, the Hong Kong government can continue to enforce its ban on masks at public assemblies and also enforce its pandemic measures, which prohibit public gatherings of more than eight people. These measures have been extended through June 4, ruling out any legal commemoration for the victims of the massacre of protestors in Tiananmen Square on June 4, 1989.
Even if the public gatherings rule is lifted in response to improving public health conditions, the Hong Kong authorities at this point are likely to reject protest permits for all but a few marches — meaning that efforts to organize and march in the streets will be regarded as illegal assemblies, and handled as such by the police. This was the case on May 24, when at least 180 people were arrested as protestors attempted to hold a large-scale march that the police effectively thwarted.
Now that the national security law is passed, there’s still another channel through which its enforcement could be delayed. This would be through legal challenges filed in Hong Kong’s courts. While many believe that the exercise would be hopeless, the process of legislative review by a lower court and then by Hong Kong’s Court of Final Appeal (CFA) could create problems for Beijing if the lower court or both appellate bodies rule the measure as unconstitutional.
Many critics and legal experts view this as unlikely, claiming that the Hong Kong judiciary is already cowed by Beijing, and judges will probably support the national security law based on a strict reading of the Basic Law. And even if it were to happen that the CFA ruled the measure as unconstitutional, the Basic Law states that the ultimate say over the constitutionality of Hong Kong legislation lies with the Standing Committee of the National People’s Congress — the very body that passed the national security law in the first place. Though the outcome may be predictable, the process of ruling on the constitutionality of the law would come at some price for the CCP, further exposing the manner in which it is gutting Hong Kong’s political institutions.
There’s another factor in the timing of the legislation as well — it’s an election year, not only in the United States but also in Hong Kong. Legislative elections in early September in Hong Kong raise the possibility of a landslide victory by opposition parties — even the remote possibility that they could gain a majority of the seats, despite malapportionment favoring the pro-Beijing parties. The threat of an empowered opposition in the legislature may give Xi Jinping all the more reason to speed up the passage of the law before the September elections. On the other hand, some speculate that he would wait for the new legislature to convene, offering Hong Kong one final chance to pass the national security legislation locally, before the central government does so as a last resort.
The presidential election in the United States may also loom large in Beijing’s strategy. If Beijing uses the six-month timetable to enact the law, it will have the luxury of knowing who China’s adversary in the White House will be: a newly-elected Biden administration or a re-elected Trump administration. While bipartisan criticism of China over its handling of Hong Kong means that the issue will remain a sticking point either way, it’s conceivable that Trump, who has never really supported Hong Kong autonomy amidst his many other criticisms of China over trade policy, could readily offer to drop punitive sanctions over Hong Kong in exchange for promises that China will increase its purchases of American goods. (Trump’s opposition to sanctions against Russia imposed in the wake of the 2014 intervention in Ukraine is instructive.)
Next month will mark the arrival of milestone anniversaries from last year’s protests. Marchers will attempt to rally on several dates in June, as well as on July 1, the anniversary of the city’s transfer to PRC rule in 1997. The most important question with these events will be the level of force that the Hong Kong government uses to suppress them. If one or more protestors winds up as a martyr in the wake of police measures that become lethal, the stakes will escalate dramatically.
Another crucial question will be the extent to which some protestors adopt violent tactics. Daily images of running street battles in Hong Kong may paradoxically work to Beijing’s advantage, by giving authorities a fresh pretext to crack down.
As never before, the future of the city’s autonomous status hangs in the balance.
Mark W. Frazier is co-director of the India China Institute and professor of politics at The New School for Social Research and author of The Power of Place: Contentious Politics in Twentieth Century Shanghai and Bombay (Cambridge University Press, 2019).