A Spectre Resurfaces: Chinese National Security Legislation and Hong Kong

—Alvin Y.H. Cheung, Visiting Scholar, U.S.-Asia Law Institute, NYU School of Law

National security legislation has been a “third rail” of Hong Kong politics since 500,000 people marched in protest against the National Security (Legislative Provisions) Bill on July 1, 2003 – ultimately forcing then-Chief Executive Tung Chee-hwa to resign.  Nonetheless, in the wake of the Umbrella Movement pro-democracy protests of 2014, the Hong Kong Government and its supporters are again raising the spectre of national security legislation.  In his Policy Address, Chief Executive C.Y. Leung – ignoring the adage to pick on someone his own size – singled out the Hong Kong University Students’ Union magazine Undergrad for promoting secessionist sentiments and urged politicians to “advise them against putting forward such fallacies.”  On January 14, 2015, Ng Leung-sing, a pro-Beijing legislator and Vice-Chair of the Legislative Council’s Panel on Security, stated that he believed that Chinese State Security was involved in the investigation of the protests (The Stand News – Chinese only).  Within days, National People’s Congress deputy Stanley Ng asserted that the Mainland’s state security legislation should be applied to Hong Kong, in the absence of local national security legislation.

Can Mainland National Security Legislation be Applied to Hong Kong?

Basic Law Article 18(2)-(3) defines the circumstances in which Mainland laws can be applied to Hong Kong, except in wartime or during a state of emergency.  Under Article 18(2), only Mainland laws listed in Annex III to the Basic Law can be applied directly.  The National People’s Congress Standing Committee may add or remove Mainland laws from Annex III after consulting the Basic Law Committee, but such laws may only relate to defence, foreign affairs, or “other matters outside the limits of the autonomy of [Hong Kong].”

Under Articles 13 and 14 of the Basic Law, Beijing is responsible for foreign affairs and defence.  Article 14(2) provides, however, that the Hong Kong Government is responsible for the maintenance of public order.

Basic Law Article 23 provides:

The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.

Taken in conjunction, these provisions of the Basic Law suggest that Mainland national security legislation cannot be applied to Hong Kong without stretching the meaning of “defence” beyond acceptable bounds.  First, under Article 18(3), only Mainland law relating to “defence and foreign affairs,” or to “other matters outside the limits of the autonomy of [Hong Kong],” may be applied to Hong Kong through Annex III.  Although “defence” is not explicitly defined in Article 14, Article 14(3) refers to “Military forces stationed… in the Hong Kong Special Administrative Region for defence.”  Although “defence” could be interpreted broadly, the existence of Article 23 – under which Hong Kong is supposed to enact its own internal security legislation – suggests that “defence” should be construed narrowly to exclude internal security matters.

Second, the existence of Article 23 indicates that internal security matters are within the scope of Hong Kong’s legislative autonomy.  This, again, suggests that internal security is an inappropriate subject for Mainland legislation under Annex III.  In that light, reports that Mainland state security has been operating in Hong Kong are particularly unsettling.  Under Basic Law Article 22(1), no department of the Beijing government may interfere in affairs that Hong Kong administers on its own under the Basic Law.

Conclusion: Bait and Switch

The suggestion that Mainland national security legislation should apply directly to Hong Kong – and revelations that Mainland state security personnel have been operating in Hong Kong – have rightly been regarded as a body blow to Hong Kong’s supposed “One Country, Two Systems” model of governance.  Indeed, Stanley Ng’s proposal is sufficiently radical that it has been repudiated even by other pro-Beijing politicians.  But Ng’s proposal may represent merely the opening gambit in Beijing’s continuing crackdown on dissent in Hong Kong following the Umbrella Movement.  Pro-Beijing politicians and pundits are now advocating a revival of Article 23 national security legislation, pitching it as preferable to the imposition of Mainland legislation.

Ng’s “modest proposal” also forms part of a broader trend in Beijing to roll back – or even repudiate – commitments made under the Basic Law and the Sino-British Joint Declaration.  The State Council’s White Paper of 2014 was rightly criticised for its attempt to characterise Hong Kong’s robustly independent judges as “administrators,” of whom political pliancy was expected.  And the international law arguments that Hong Kong and Beijing officials have advanced – which I summarise elsewhere – vehemently reject even the possibility that the United Kingdom could monitor Chinese compliance with its “basic policies” until the stipulated deadline of 2047.  Even if the ruse to revive Article 23 legislation fails, further inroads into Hong Kong’s autonomy in the service of the ongoing “struggle” against democrats seem likely.

Suggested citation: Alvin Y.H. Cheung, A Spectre Resurfaces: Chinese National Security Legislation and Hong Kong, Int’l J. Const. L. Blog, Feb. 11, 2015, at: http://www.iconnectblog.com/2015/02/a-spectre-resurfaces-chinese-national-security-legislation-and-hong-kong/