[Editor’s Note: In light of recent constitutional (or some may say, unconstitutional) developments, I-CONnect is pleased to feature this timely symposium examining constitutional struggles in Asia. This is part IV of a five part series, in addition to the Introduction.]
— Eva Pils, The Dickson Pool School of Law, King’s College London
On 30 June 2020, the Standing Committee of the National People’s Congress enacted the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong S.A.R (‘the Hong Kong National Security Law’ or ‘HKNSL’). This law was a response to the political protest that engulfed Hong Kong through much of 2019. While aimed ostensibly at quelling a crisis, the new law has prompted deep disquiet both locally and internationally.
This contribution examines the constitutional implications of the HKNSL. It argues that the substance of this law as well as the manner in which it is being deployed damaged the Hong Kong Basic Law’s (already faltering) status as an authoritative, binding regional constitution that enshrines, albeit partially, many liberal-democratic constitutional values. It also highlights the challenge posed by the HKNSL to constitutional values in other states. The law stakes a sprawling claim to extraterritoriality: it applies to any individual committing the crimes it defines, even if they are not a Hong Kong permanent resident and are outside Hong Kong. In this regard, I will consider briefly how states and international institutions might respond to a measure that will, both formally and informally, have transnational effects on freedom of expression and association.
Hybrid Constitutionalism under the Basic Law
Hong Kong’s Basic Law performs a difficult balancing act. Many features of this regional constitutional enshrine values associated with what Will Waluchov describes as ‘global Constitutionalism’, namely ‘the idea… that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations’. Most importantly within the context of Hong Kong, this has meant strong constitutional recognition for civil and political rights, judicial independence, and a degree of separation of powers. That said, Hong Kong’s political system has frequently been described as ‘executive-led’. Hong Kong’s legislature is only partially elected through universal franchise, and constitutionally constrained in its ability to propose and amend legislation. Notwithstanding the Basic Law’s stated commitment to a high degree of regional autonomy, provisions on democratic political reform and the right to vote are ambiguous and weak. In practice, the substance and pace of political reform has been substantially controlled by the central authorities. Despite widespread support for representative government, there was little meaningful progress towards this goal even fifteen years after the Handover. Thus, Hong Kong’s hybrid constitutionalist framework facilitated debate, rights-based litigation, academic freedom, and civil society organising, but stifled democratic reform.
Over time, public demands for political reform grew, leading to the Umbrella Movement in 2014, and more recently, long-running and contentious street protests in 2019. The peaceful protests at the outset of this phase were protected by constitutional safeguards. But from the perspective of officials and scholars aligned with the central Chinese Party-State, the very features of the system that have allowed Hong Kong to adhere to constitutionalism have been a longstanding cause for concern. The fundamental rights enshrined in the Basic Law have supported a vibrant civil society engaging critically not only with governance issues in Hong Kong and abroad, but also with governance (and human rights violations) in Mainland China.
This, from a Mainland perspective, was not how the system of the SAR was supposed to function. Moreover, once the PRC authorities had decided to declare unilaterally that the international treaty between the PRC and the UK governing Hong Kong’s fate (for fifty years from the date of reversion of sovereignty) ‘no longer had meaning’, the way was cleared for diluting the liberal values embedded in Hong Kong’s politico-legal system through the introduction of the HKNSL. Article 23 of the Basic Law requires Hong Kong to enact national security legislation criminalising particular offences ‘on its own’. The Basic Law also lays down a specific procedure for Mainland legislation to be introduced into Hong Kong’s common law legal system. Ignoring both these provisions, the HKNSL was drafted and imposed directly by the national legislature.
The HKNSL and Constitutionalism in Hong Kong
The HKNSL introduces broadly defined crimes of secession (article 20), subversion (article 22), terrorist activities (article 24), and ‘collusion with a foreign country or with external elements to endanger national security’ (article 29). It also establishes a security apparatus that enables the central government to administer security law and policy in Hong Kong. Perhaps most strikingly, it substantially ousts judicial review over national security regulations, and allows a select category of national security cases to be diverted entirely into the Mainland criminal justice system.
The scope of the HKNSL’s provisions sits uneasily with constitutionally-protected rights of freedom of speech, assembly and association under the Basic Law and the Hong Kong Bill of Rights Ordinance. The restriction on judicial review and diversion of cases into the Mainland system conflicts with the express words of the Basic Law. In addition, the HKNSL was enacted in the midst of tightening repression aimed to suppress political dissent and civil society criticism of the government in Hong Kong. It has already led to further arrests of critics including media entrepreneur Jimmy Lai and Agnes Chow, as well as the triggering of the feared mechanisms for processing criminal cases of Hong Kong citizens in the Mainland, and the deployment of the language of the law by government- friendly media organisations to criticise academics, such as Professor Ching-Kwan Lee.
Hong Kong’s Education Bureau recently released guidelines for Hong Kong schools to ensure they conform to the HKNSL. It is clear that some topics and opinions will be taboo in the classroom. Under the law, universities too have a responsibility to promote national security. While the city’s universities have not yet received official directives, reports suggest that many academics are concerned about the new reality.
The HKNSL’s global impact
While the HKNSL’s primary repressive effects are local, even a cursory glance makes it clear that the new law is also intended to repress dissent on a global scale. Article 38 stipulates that the Law applies to anyone committing the crimes it defines, even if they are not a Hong Kong permanent resident and are outside the HKSAR. This extraterritoriality provision purports to universalise the reach of Hong Kong criminal justice in national security matters, including the possibility of criminal proceedings related to alleged extraterritorial offences being funnelled into the Mainland criminal justice system.
The arrest warrant for Samuel Chu, a U.S. citizen who heads the Washington D.C.-based Hong Kong Democracy Council, is one example of how extra-territoriality provisions might be used to stifle overseas advocacy related to China. In addition, the HKNSL’s provisions targeting domestic actors also affect Hong Kong’s vibrant transnational civil society. Hong Kong-based groups must now be cautious about fund-raising and partnering with organisations abroad on issues that could be construed as politically sensitive. Actors based outside China, in turn, might be forced to decide if they can continue their relationships of collaboration and exchange without potentially putting colleagues and partners at risk. It is also possible that universities with significant numbers of students from Hong Kong and Mainland China will be worried about the reach of the law and modulate their research and teaching accordingly.
The way the HKNSL was introduced and what it contains, both lead one to ask whether the Basic Law – the regional constitution – has become meaningless as a constraint on state power. This, in turn, prompts a further question: is hybrid constitutionalism inherently unstable and difficult to sustain beyond the short term? The current situation presents a particular challenge for the credibility and strength of Hong Kong’s judiciary. Within the context of national security cases, with attenuated judicial review powers, the courts will find it difficult to give effect to constitutional rights and common law protections. Subtler, but equally challenging for constitutionalism, are the quieter, ambient effects of the HKNSL. If Hong Kong’s political opposition, media, and general public fear questioning the authorities, demanding accountability, and asserting their rights, separation of powers and rule of law might come to be understood very differently in the future. Beyond Hong Kong, the HKNSL and related developments suggest that the law’s chilling effect may cross borders. This, in turn, potentially contributes to the erosion of global constitutionalism and international rule of law.
[Note: An earlier version of this post was presented at a Webinar on Constitutional Struggles in Asia (1 – 3 December 2020). The event was part of a larger research project in collaboration with the Centre for Asian Legal Studies, National University of Singapore, the College of Law, Australian National University, and the Federal Law Review.]
 Wil Waluchov, ‘Constitutionalism’ entry in Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/constitutionalism/#ConLawVerConCon.
 Swati Jhaveri, ‘Reconstitutionalizing Politics in the Hong Kong Special Administrative Region of China’, 13(1) Asian Journal of Comparative Law 27-57 (2018).
 Michael C. Davis advances the argument that as the HKBL is a mere NPC law, from a Mainland perspective, the HKNSL could override it. Scholars including Johannes Chan and Fu Hualing, however, have opposed this view. See Michael C. Davis, Making Hong Kong China (Columbia University Press, 2020). On the impact of the Joint Declaration, see Alvin Y. Cheung, ‘Road to Nowhere: Hong Kong’s Democratization and China’s Obligations under Public International Law’, 40 Brooklyn Journal of International Law 467 (2014) 467, http://brooklynworks.brooklaw.edu/bjil/vol40/iss2/3.
 This law translates Hong Kong’s commitments under the ICCPR into domestic law. It is endowed with constitutional status by Article 39 of the Basic Law.
Suggested citation: Eva Pils, The Hong Kong National Security Law: Challenging Constitutionalism in Hong Kong and Abroad, Int’l J. Const. L. Blog, Feb. 23, 2021, at: http://www.iconnectblog.com/2021/02/the-hong-kong-national-security-law-challenging-constitutionalism-in-hong-kong-and-abroad/