Posted on: July 13, 2020 Posted by: Aaditya Chakraborti Comments: 0
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On the 30thof June, Beijing imposed a new national-security legislation in Hong Kong, bypassing its autonomous legislature which, as per their claim, is an attempt to criminalize any separatist or secessionist movements in the region, as well as stopping foreign powers from interfering in the city’s affairs. The city of Hong Kong has been embroiled in a strife between the protesters and the state security agencies since the past year and this decree aims at culling it. But what does it imply about the sovereignty of the region? Is it under threat from the expansionist Red Dragon?

The history of Hong Kong and mainland China

Prior to July of 1997, Hong Kong became a part of the Imperial British Empire as an outcome of The First Opium War in 1842 when The Qing dynasty ceded Hong Kong Island to Britain thus making it a colonial outpost. In 1860, following The Second Opium War, the Kowloon Peninsula was annexed and was further expanded when the British obtained a 99-year lease of the New Territories in 1898. As the colony faced an uncertain future at the end of the lease, the Governor of Hong Kong, Murray MacLehose met with the then Chinese Premier, Deng Xiaoping in an attempt to discuss its status after the lease, and after a suite of diplomatic negotiations, it was agreed in 1984 in The Sino-British Joint Declaration that the United Kingdom would transfer the colony to China in 1997 and the PRC would guarantee its economic and political systems for 50 years, the deadline for which would be in July 2047.

Due to its status as a Special Administrative Region, Hong Kong would retain its economic and administrative systems, while the rest of mainland China would use the Chinese variant of the Communist system. This is a status it shares with the city of Macau which achieved this distinction in 1999. This constitutional principle of the Special Administrative Regions (SARs) is termed as the “One country, two systems” (Portuguese: Um pais, dois systemas) principle and until recently was the accepted status quo.

The change in the legislative status quo

When the Basic Law (mini-constitution) of Hong Kong came into being in 1997, it allowed the region to retain its capitalist economy system and its own currency (The Hong Kong Dollar), legal and legislative systems, the same human rights and freedoms as the rest of China, special Hong Kong SAR passports among other things although the biggest difference was the use of language. While Mandarin was prevalent in mainland China, Hong Kong uses Cantonese and English as its primary languages. The central government in Beijing maintains controls over Hong Kong’s foreign affairs as well as interpretation of the Basic Law. However, some of the provisions were never implemented. These include the provision to grant universal suffrage and another was a pledge to outlaw national-security crimes which has been fulfilled by the new law.

Article 23 of the Basic Law enables Hong Kong to pass the national-security legislation itself. However fierce public opposition, famous examples being in 2003 where half a million people took to the streets to voice their dissent and in 2014 when a political movement called the Umbrella Revolution took place leading to more than 100,000 protesters were involved prevented this legislation from ripening.

The perpetual change in status quo stems from the way in which this law was implemented by the Chinese government which took matters into its own hands and secretly passed this legislation which is comprised of 66 Articles. This law criminalises any act of secession, subversion, terrorism and collusion against the government. Some of the key provisions are:

    • Crimes of secession, subversion, terrorism and collusion with foreign forces are punishable by a maximum sentence of life imprisonment.
    • Damaging public transport facilities can be considered terrorism.
    • Beijing will establish a new security office in Hong Kong, with its own law enforcement personnel- neither of whom come under the local authority’s jurisdiction.
    • This office can send some cases to be tried in mainland China– but Beijing has said it will only have that power over a “tiny number of cases.”
  • Hong Kong will have to establish its own national security commission to enforce the laws, with a Beijing-appointed adviser.
  • Hong Kong’s chief executive will have power to appoint judges to hear such cases and some trials will be heard behind closed doors, raising concerns over judicial autonomy.
  • The most important provision states that Beijing will have power over how the law should be interpreted.

And finally,

  • The law also applies to non-permanent residents and people “outside of Hong Kong who are no permanent residents.”

The change in the legislative status quo is the fact that this decision which, as per Article 23 was meant to be taken by the Hong Kong Legislative Council, was instead enacted by the Standing Committee of the National People’s Congressin Beijing. One can summarise this by saying that the Chinese government has taken matters into its own hands by overriding the decision-making process of the autonomous Hong Kong council, hence this law.

What does this mean for the future of Hong Kong’s sovereignty?

Beijing’s decision to be in the driver seat for being in charge of the law and order situation in Hong Kong and with some of the provisions raising concerns about the CCP usurping the judicial autonomy of the Hong Kong Legislative Council has led to critics of the Chinese regime to term this as an act of perfidy towards Hong Kong’s freedoms.

China has in the past used national security laws to suppress activists with many cases of people being arrested and imprisoned for espionage making headlines in the news. There is fear among many that the Chinese criminal law will override the common law system of Hong Kong which people are not sanguine with as it was up to the government of China to protect the independent judiciary of Hong Kong according to the Basic Law and Hong Kong is the only province which enjoys the right to have some measure of independence. There are worries that supplanting Hong Kong’s liberties will affect its status as an economic powerhouse given it is China’s proverbial golden goose.

China does indeed have the ability to make such decisions as their criminal system laws aren’t applicable in Hong Kong unless they are listed in a section called Anex III under which this legislation has been categorised. Pro-democracy and anti-China movements have been on the rise since last year and the last thing which the expansionist nation would appreciate is the people of Hong Kong rejecting it as a benefactor as this would impact their economy and territory. This is widely considered to be the catalyst behind this impromptu decision. As this law prevents foreign governments from interfering in the matters of the province, this encapsulates it from receiving external help. Eroding the legal systems of an autonomous province is the first step in an attempt to annex it into the mainland of a country. The government’s decision could potentially spell the doom for an independent Hong Kong. This is what the bellicose democracy protesters in Hong Kong fear. And this is why the belief that Hong Kong’s sovereignty is under threat may not be a far-fetched idea.

Aaditya Chakraborti
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First Year BSL.LLB student at Rizvi Law college, Mumbai

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