On June 2, Dominic Raab, the British foreign secretary, told the Parliament at Westminster that “The imposition of national security legislation on Hong Kong by the government in Beijing, rather than through Hong Kong’s own institutions, lies in direct conflict with Article 23 of China’s own Basic Law.”
This statement is wrong on several levels. To understand
why, we need to consider some foundational aspects related to the creation of
the Basic Law of the HKSAR and also, the context leading to the HKSAR national
security law currently being prepared by the Standing Committee of the National
People’s Congress (NPC).
Hong Kong’s Basic Law is a law of the NPC. It was passed in 1990, under the authority conferred on the NPC by Article 31 of the Chinese Constitution (allowing for the creation of special administrative regions within the PRC). The Basic Law provides the elemental, regional legal foundations for governing the HKSAR within the PRC under the “one country, two systems” formula. At the most fundamental level, the Basic Law draws its lifeblood from the Chinese Constitution of 1982.
The Basic Law reflects the separate Hong Kong political system, which is accommodated by the “one country, two systems” regime and, within the HKSAR, it also enjoys standing as an ultimate law, where it is often referred to as a “mini-constitution”.
The Sino-British Joint Declaration on the Question of Hong Kong (JD) was signed in December 1984. Could it not be the foundational source of the constitutional order in the HKSAR? It is an important instrument, which has played a pivotal role in shaping the content of the Basic Law. The JD is, in essence, a precursor, auxiliary international treaty. The JD is not, however, a fundamental constitutional source of the Basic Law. It is Article 31 of the Chinese Constitution that has lawfully sanctioned the creation of the Basic Law — not the JD. The JD has performed a role not unlike that played by the Australian Constitutional Conventions, which helped draw up the Australian Constitution. Those conventions were crucial in shaping the Australian Constitution, but its constitutional authority is a product of its enactment by the UK Parliament in 1900. Any tensions arising since between entitlements argued in the conventions and the wording of the constitution have always, rightly, been resolved in favor of the latter.
Next, we need to reflect on why the new national security law is needed in Hong Kong today. It is just one year since very serious political rioting broke out after intense disputation about the proposed extradition bill. The violence since then has been continuously terrifying and the damage horrific. The Legislative Council was comprehensively wrecked by enraged political activists and, after it was repaired, then brought to a virtual standstill through procedural manipulation by empathizing opposition members. The political opposition in Hong Kong has shown intractable hostility to rational forms of negotiation and a reckless disinterest in maintaining the rule of law in the HKSAR.
The intense political turmoil in the HKSAR over the last year (physically destructive and psychologically terrifying to residents, and regularly accompanied by calls for revolution and independence) has posed a national security threat both to the constitutional order of HKSAR and the constitutional order of China.
Professor Anthony Cheung Bing-leung (once a principal “pan-democrat” — later a principal official in the HKSAR government) lately noted that the primary promise of the opposition, should they secure a majority in the LegCo elections in September, is “incessant confrontations and filibusters making Hong Kong ungovernable”. The respected former chief justice of the Court of Final Appeal, Andrew Li Kwok-nang, recently observed that, “Having regard to events in Hong Kong in the last few years, the decision of the NPC to authorize its Standing Committee to enact national security legislation for Hong Kong is understandable and justifiable”. Other former leading judges have expressed similar views, as have business and community leaders. All these supportive commentators have also stressed the importance of carefully monitoring the operation of the coming new law.
Let us now return to that recent foreign secretary statement at Westminster.
It is true that the proposed new national security law for the HKSAR will not be enacted by LegCo. Previous and now promised, intensified future disruption have made legislating national security laws in the HKSAR by relying on LegCo all but inconceivable.
It is disingenuous, however, to claim that the coming new law is not being applied “through Hong Kong Kong’s own institutions”. The new law will be applied in accordance with the powers set out in Article 18 of the Basic Law, the fundamental constitutional instrument of the HKSAR. The new law will be added to Annex III of the Basic Law by the NPC Standing Committee, in accordance with Article 18. And it will then be applied by a pivotal Hong Kong institution, the HKSAR government, by promulgation following the procedures set out in Article 18.
Next, to say that this procedure is “in direct conflict with Article 23 of China’s own Basic Law” is conspicuously incorrect. First, as explained above, the Basic Law is, in essence, Hong Kong’s Basic Law rather than China’s Basic Law. More substantively, Article 23 delegates a concurrent power to the HKSAR to enact certain national security laws but Article 23 does not confer an exclusive power to do so. It could never do this, as the primary responsibility for securing national security lies with the sovereign in Beijing.
As explained above, there is now wide agreement that the HKSAR seriously needs this new law, and its application is fully grounded, constitutionally. The claims to the contrary by the British foreign secretary simply do not stand up.
Mr Raab is not the only member of the British government to offer his views on the pending new national security law. The British prime minister, Boris Johnson, recently wrote an opinion article published in London and Hong Kong where he claims that this clearly needed initiative would put China “in direct conflict with its obligations under the Joint Declaration”. Alas, as confirmed above, Beijing’s legal and constitutional obligations under the “one country, two systems” regime are fundamentally embodied in the Basic Law — not in the JD.
It is also instructive to consider how the UK treats its own “obligations” arising from international legal decisions and instruments. On Feb 25, 2019, the International Court of Justice (ICJ) handed down an opinion in which the UK was unambiguously ordered to hand back the Chagos Islands in the Indian Ocean to Mauritius “as rapidly as possible”. British occupation of the archipelago was ruled to be illegal. One of these islands is Diego Garcia. By 1973, all its inhabitants were forcibly removed by the British so that a (now massive) US/UK military base could be established on Diego Garcia.
On the same day the ICJ judgment was handed down, the British minister for Asia and the Pacific made it clear that the UK government was going to maintain the base to help “keep people here in Britain and around the world safe”. The judgment of the ICJ was, the UK said revealingly, only advisory. The US robustly endorsed this view. The British minister made this announcement at the commencement of a speech to the Royal United Services Institute, urging the value of and adherence to the Rules-Based International System. The inconsistency is breathtaking.
The claims of the British prime minister and the foreign secretary might pass muster as worthy assertions in Whitehall. They do not, however, draw, as they should, on a clear understanding of the fundamental constitutional regime within China, governing the relationship between Beijing and Hong Kong and Beijing’s paramount responsibility to secure China’s national security. A thoughtful, timely reading of the Basic Law, in context, could have revealed this before these hasty, politicized claims were advanced.
The author is a visiting professor in the Faculty of Law, the University of Hong Kong.
The views do not necessarily reflect those of China Daily.
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