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Onslaught of “Rule of Law” with Chinese Characteristics on Hong Kong

2020年05月23日

On Thursday, May 21, authorities in Beijing announced a draft Decision to formulate and enact national security legislation prohibiting four identified security threats in Hong Kong: secession, subversion of state power, terrorism, and foreign interference. The move contravenes requirement in Article 23 of the Basic Law, Hong Kong’s functional constitution, that the Hong Kong Special Administrative Region enact security laws on its own.

The draft Decision, expected to be adopted by the National People’s Congress (NPC) currently in session, authorizes the NPC Standing Committee (NPCSC) to draft the legislation, to be added directly into Annex III of the Basic Law—which contains a list of national laws relating to defense and foreign affairs that are applicable to Hong Kong. In effect, the draft Decision prescribes a legislative process that will bypass the Hong Kong SAR’s own legislative process.

“This blatant move signals further acceleration of Beijing's efforts to dismantle the ‘one country, two systems’ framework that was intended to protect the rule of law and fundamental rights and freedoms, and to ensure a high degree of autonomy for Hong Kong,” said Sharon Hom, Executive Director of Human Rights in China.

“Beyond Hong Kong, what’s also at stake is the threat to the entire world of a non-accountable regime that dismisses its international commitments and ignores international standards.”

The NPC action strikes at the heart of a long-standing controversial legislative issue facing Hong Kong which dates to 2003 when the Hong Kong administration first attempted to introduce such legislation. That year, large-scale protests triggered by fear that such legislation would give local and mainland authorities sweeping power to erode civil rights and liberties forced back the attempt.

The road to the draft Decision has been paved with alarming developments in April, including the pronouncement on April 17 by the Liaison Office of the Central People’s Government (LOCPG) in Hong Kong that it is not bound by the Basic Law (a startling claim that was quickly accepted by the SAR government), the arrests of 15 prominent democracy figures on April 18, and then the installation of a pro-Beijing member of the Legislative Council, Hong Kong’s legislature, as chair of its House Committee—by decree of the president of the legislature. All were clear signals of Beijing’s hardening line and resolve to exert authoritarian control over Hong Kong people.

“The decision to ram a national security law down the throats of the people of Hong Kong has been made, sadly and outrageously, with the shameless complicity of a politically incompetent Chief Executive, Carrie Lam, who has abdicated her responsibility to represent the interest of the people of Hong Kong,” said Sharon Hom.

In her press conference on May 22, Lam defended her capitulation of the legislative process to Beijing by characterizing popular and legislative resistance to enacting Article 23 legislation as “obstacles.”  “We can’t pass this legislation . . . . Therefore, it’s time for decisive action by central authorities.”

The Basic Law has strict limitation on the types of law that mainland authorities may impose on Hong Kong. Article 18 states, “National laws shall not be applied in the Hong Kong Special Administrative Region,” except for national laws relating to defense and foreign affairs. The provision also allows Beijing to order the application of national laws in times of “turmoil” and a declared “state of emergency.”

And in an attempt to justify the exigency, Lam raised the specter of terrorism by selectively focusing only on the violence among some participants in the massive anti-extradition bill protests that began in 2019. Dutifully repeating Beijing’s narrative, she and other pro-Beijing voices in the SAR government have in recent weeks sounded increasing alarms of national security threats destroying Hong Kong’s stability and prosperity.

The draft Decision makes clear that the legislation will allow mainland authorities to set up agencies in Hong Kong to “perform duties related to safeguard national security.” Yet defying logic and facts, Lam insisted, in the May 22 press conference, that “Hong Kong will remain to be a very free society, where freedom of expression, freedom of protest, freedom of journalism will stay. . . . because these are the core values of Hong Kong and are very much protected by the Basic Law.”

It is difficult to imagine that Lam actually believes this image of a Hong Kong that she purveys can square with Beijing’s policy statements that reject constitutional democracy, universal values, and an independent press, as “false ideological trends” (“Document 9”) and demand that judges stay “absolutely loyal to the party.”

With these ideological and political imperatives, it seems highly unlikely that the NPCSC will formulate a national security law for Hong Kong that conforms to international norms and standards and respects and protects the fundamental rights and freedoms of individuals. It is far more likely that the legislation will be another politicized weapon in the hands of Beijing to ensure only voices and activities that toe the Party line will be allowed.

“The Hong Kong people are on the frontline of exposing and opposing the authoritarian onslaught on their fundamental rights and rule of law. They are showing the world that it is possible to stand up to a powerful authoritarian regime, but they are paying a terrible price,” said Sharon Hom.

“Failure on the part of the international community to take meaningful actions now and support them is to unjustly benefit as a free rider.”

In fact, Deng Xiaoping (China’s paramount leader from 1978 to 1992), stated in 1974 at a special session of the UN General Assembly:

If one day China should change her colour and turn into a superpower, if she too should play the tyrant in the world, and everywhere subject others to her bullying, aggression and exploitation, the people of the world should identify her as social-imperialism, expose it, oppose it . . . .

Call to Action

HRIC urges the government of the People’s Republic of China and stakeholders from every sector of the global community—governments, international organizations, civil society groups, businesses, media, academia, and concerned individual advocates—to do their part to protect the legally guaranteed rights and freedoms of the people of Hong Kong.

Governments of the People’s Republic of China and the Hong Kong Special Administrative Region

During the drafting stage, the central government of the PRC must take necessary steps to reduce further damage to the “one country, two systems” framework, and engage in responsible dialogue with all parties to ensure the rights and freedoms of the Hong Kong people are duly respected. In accordance with its past legislative practice related to national security laws, the NPCSC should solicit comments and input on drafts from diverse stakeholders, including from the legal, academic, and business communities, and civil society groups in Hong Kong.  Failure to do so will only exacerbate the trust and legitimacy deficit it already suffers.

Other national governments

HRIC urges national governments to deploy the full range of diplomatic tools to ensure the central and Hong Kong SAR governments’ compliance with and respect for international standards, including freedom of expression and opinion, peaceful assembly, and the right to participate. Specific actions, with careful consideration of the related impacts on the Hong Kong people, include the following:

  • Make formal démarches to the central government and Hong Kong SAR authorities, or issue public statements backed by concrete action.
  • Call upon the central government to respect its obligations under international law, in particular, the Sino-British Joint Declaration and the International Covenant on Civil and Political Rights. The UK government, as the co-signatory to the Joint Declaration, must take concrete steps to ensure the effective implementation of treaty obligations, including invoking any remedies under international treaty law.
  • Implement existing legislation to take measures against officials and others in the central and Hong Kong SAR governments who are complicit in ongoing human rights infringement.
  • At the next UN Human Rights Council election, subject China’s expected candidacy bid to a rigorous review, engage critically with the election process, and vote a principled position that is consistent with ensuring the integrity and effectiveness of the Council.
  • As UN member states, monitor and ensure that Hong Kong civil society actors—who have continued their active engagement with, monitoring of, and contribution to the next UN Human Rights Committee review of the Hong Kong SAR government’s implementation of the International Covenant on Civil and Political Rights to ensure an informed and robust review—are not subjected to reprisals for these and other exercise of rights.
  • Regarding any economic sanctions or measures, carefully consider, in conjunction with other states, the implications for and scope of economic impacts on the people.

The COVID-19 health crisis has powerfully exposed the threats that a non-accountable, non-transparent governance system poses for its own people and the world. This is an existential moment for the international community to stand with the Hong Kong people and their aspirations for a democratic Hong Kong.

At the end of the day, the fact remains: only a vibrant free civil society, with independent media and a rule of law, can ensure sustainable true stability and prosperity for all of Hong Kong’s people.

Related Resource
  • UN Special Rapporteurs’ communication to China on potential misuse of terrorism and sedition legislation in Hong Kong (April 23, 2020): EN
錯誤 | Human Rights in China 中国人权 | HRIC

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