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Common Sense for Hong Kong

Jun 09, 2020

The decision of the National People’s Congress to draft a new security law to be imposed in Hong Kong, has sparked severe concerns around the globe. Many people fear that the new law could undermine the constitutional arrangement of “one country, two systems” and plunge the once-freewheeling city into turmoil and despair. As a result, Hong Kong, dubbed “the pearl of the Orient,” could lose its halo as a global financial hub.

While the concerns are somewhat understandable, I would like to clarify a few key points relating to the HKSAR’s national security issue.

First of all, the People’s Republic of China is a unitary country, and Hong Kong is an inalienable part of China (BL 1 & 12). It is a special administrative region directly under the central government which has complete authority over it. Hong Kong’s high degree of autonomy is confined to those authorities delegated to it by NPC and set out in the Basic Law, and all other powers belong to the sovereign.

Under such a constitutional order, Beijing is undoubtedly responsible for national security, which is beyond the scope of the Hong Kong SAR’s authority. Sadly, many Hong Kongers have misunderstood this new constitutional order — some of them willfully.  Some people argue that the PRC has no power over Hong Kong at all, apart from defense and foreign affairs. It should be clarified herewith that the “high degree of autonomy” at the center of the constitutional question is not total autonomy.

It is common sense that Hong Kong is not an independent sovereign state, as all of its power and autonomy was granted by the central government, which established the region on its return to China from Britain in 1997. Defense and foreign affairs are matters clearly within the sphere and scope of the central government, as stipulated unambiguously in the Basic Law. But Beijing’s governing powers over Hong Kong are much more than that. Certain powers are reserved to the central government, particularly in matters of sovereignty.

Some may argue that in bypassing Hong Kong’s legislature, Beijing is setting a dangerous precedent of overriding HK’s legal system. It my view, it is entirely in compliance with the Constitution and the Basic Law, and does not undermine one country two systems or Hong Kong’s legal system. We all know that the Constitution is the supreme law and no law can contravene the Constitution. It applies to the whole territory.

In other words, the Constitution is the foundational source and the authorizing vehicle for all laws promulgated by the NPC or its Standing Committee. The Basic Law is the specific law applicable to Hong Kong, and when there is a difference between the two, then the Basic Law applies. The decision to propose a new law is in accordance with Article 31 and Article 62 (2), (14) and (16) of the Constitution, and with Article 18 of Hong Kong’s Basic Law.

A further discussion on the concern: Will freedoms and autonomy be eroded under the new laws once enacted?  

Although the details of the law have not yet been disclosed, we know the scope of the law and the principles on which it will be drafted.  I am fully confident that notwithstanding the enactment of the law, Hong Kong people’s freedom of speech, of assembly, of procession and of demonstration will remain intact, as they are well protected by our robust rule of law and an independent judiciary. The parameters of the law were also set out in the decision on May 28.

Some people may ask: Does Hong Kong really need a national security law? 

Every country needs legislation to protect its national security, and China is no exception. Any behavior or activity in the HKSAR that endangers national security affects China, and the need is clear for national security legislation to prevent, stop and punish it. The National Security Law of the PRC that was passed in 2015 does not apply to Hong Kong because of the differences in the two systems. It is therefore necessary for separate Nationality Security Legislation to be promulgated that is applicable to Hong Kong.

Because National Security is outside the autonomy of the HKSAR and is certainly the responsibility of the central government, BL 23 entrusts Hong Kong with the responsibility to make legislation regarding certain acts that endanger national security. Unfortunately, Hong Kong has failed in the past 23 years to implement BL 23.

Beijing’s patience has gradually worn thin. In particular, the wanton acts of violence, instigated by a handful of opposition figures and radical elements colluding with foreign forces, have crossed China’s bottom line. People around the globe had witnessed the rioters rampaging through HK’s streets during the movement against the proposed extradition bill in 2019, which illustrates the urgency and necessity of introducing national security legislation. The worsening situation truly warrants the NPC’s initiative to take into its own hands the promulgation of the law in accordance with BL 18. In making this decision, the NPC cited Articles 31 and 62(2)(14) & (16) of the Constitution as the source of its authority.

These articles relate to the power to establish a special administrative region and to decide the systems applicable to it and the standing required to exercise such other functions and powers as the highest organ of state power should exercise.  If making the decision is authorized by the Constitution and the Basic Law, how can this be bypassing the legislature?  Hong Kong itself has failed to do it.  The entrusting authority can certainly take measures to remedy such a default.

Finally, many pundits claim that “50 years unchanged,” as promised by Chinese paramount leader Deng Xiao Ping means that Hong Kong should remain as it was on June 30, 1997. My understanding is that 50 years unchanged means the basic policies of the Chinese mainland toward Hong Kong as set out in Annex 1 to the Sino British Joint Declaration shall not be changed, but the implementation of such policies may of course be changed, particularly when it allows for the beneficial development of Hong Kong.

Imposition of a national law is actually turning a new chapter for sustainable, stable governance and prosperity in Hong Kong. Improving legislation and enforcement mechanisms in protecting national security are important for the return to law and order. Instead of ruining one country, two systems, the newly enacted law could help Hong Kong regain the full confidence and trust of its citizens, and ensure that the Basic Law being correctly implemented. 

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