China’s national security law: why are the elite assigned to defend Hong Kong not speaking out?

We are told Beijing must act because Hong Kong failed to fulfil its duty under Article 23 to enact such laws ‘on its own’. But why was an opportunity for reform squandered in 2003?
Local officials tasked with guarding the city have either gone silent or joined the chorus of voices in support of the new legislation

Michael C. Davis

Published: 6:30am, 14 Jun 2020

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I cry for Hong Kong. At a time when citizens worldwide are marching against racism, people are protesting because they recognise America is not alone in its racial disparities. They see that the problems of injustice in all its forms are widespread. For this reason, the wider world may also cry for Hong Kong.

One year ago, a million protesters took to the streets in Hong Kong’s cry for justice, for its “high degree of autonomy” to be protected. A week later, 2 million joined their cause, and yet officials did not hear their cry.

For months, our young people marched against official failings. Like those in America today, they railed against police abuse. Why, in this diverse, multicultural economic hub on China’s shore, would such injustice be allowed to prevail? Isn’t too much at stake?

To answer this, consider what “one country, two systems” at a minimum must mean and why China and Britain signed this agreement. The “two systems” are necessary because Beijing was, and still is, a threat to the rule of law and human rights in Hong Kong.

In their wisdom, Chinese leaders recognised the mainland system of rule by law was no match for the rule-of-law-based open society of Hong Kong. They made a commitment to protect Hong Kong with a high degree of autonomy, the rule of law and local self-rule.

01:36

Hong Kong police fire pepper spray as hundreds gather to mark first anniversary of historic march

The Hong Kong government was to “be responsible for the maintenance of public order in the region”, the military stationed in Hong Kong for defence was to “not interfere in local affairs” and “abide” by local laws. Hong Kong “on its own” was to enact laws related to national security.

These promises were captured in the Basic Law which, as Hong Kong’s mini-constitution, set in place a structure of autonomous local government. This charged Hong Kong officials with the responsibility to rule Hong Kong “on their own” without mainland interference.

They were to fulfil the commitments to universal suffrage, the rule of law, basic freedoms and human rights laid out in the Basic Law. Today, many fear that the apparent failure of this protection may signal the end of Hong Kong as we know it.

Universal suffrage has been delayed in the name of gradual and orderly progress by the very officials charged with fulfilling these commitments. Given the high level of education and economic development in Hong Kong, it seems the only reason for this hesitancy is that officials want to guard their own powers and privileges.

A proper semi-autonomous government should put local people’s interests first and might more reliably voice their concerns to the central government.

Recently, Hong Kong officials have lined up to approve the intrusion of China’s authoritarian legal system into Hong Kong. This first came in the form of the draft extradition law, which would have allowed the rendition of locals and foreigners to face the mainland criminal justice system.

08:47

A year of anti-government protests in Hong Kong

This year things got worse, with the plan to introduce a national security law for Hong Kong. This law, which would apply mainland laws on sedition, secession, terrorism and foreign interference, is a polar opposite to Hong Kong’s rule-of-law-based system.

Yet, this is exactly what our officials are calling for. Even legislators and corporate elite in the pro-establishment camp have joined the chorus.

While we are told this law will be narrowly applied, there is cause for doubt. National security laws have been among the most oppressive areas of law on the mainland. Will Hong Kong be any different?

It will be difficult for judges to save us. With mainland agencies to be located in Hong Kong, will a court be empowered to question their actions or review a law imposed from the mainland? The courts’ power of constitutional judicial review has been challenged by mainland officials, most recently in the face mask case.

I cannot help but wonder where those assigned to guard our city have gone. Why are they either mute or part of the chorus of support when their defence of Hong Kong’s autonomy is needed? Surely everyone would have been horrified if such a proposal was advanced at the handover.

We are told the mainland must act because Hong Kong’s government did not fulfil its duty under Article 23 to enact such laws “on its own”. The public is blamed as well because more than 500,000 people opposed the unacceptable bill advanced in 2003. But why was a bad bill proposed and an opportunity for reform in this area squandered?

There has never been a compelling reason for local officials to stop carrying out their obligations under the Basic Law. They would not be expected to engage in open conflict with the mainland, but there was room to find their voice to explain Hong Kong concerns and guard Hong Kong’s autonomy.

It is not too late to do so. Who among the established elite will speak up? Or will we all be left to cry for Hong Kong?

Michael C. Davis, a former professor of law at the University of Hong Kong, is a global fellow at the Woodrow Wilson International Centre in Washington and a senior research scholar at the Weatherhead East Asia Institute at Columbia University

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