Perils of Hong Kong Security Law

Summary

China's proposed security law threatens Hong Kong's autonomy by potentially undermining the Basic Law before its expiration in 2047.

Abstract

In late May 2020, China introduced a draft security law for Hong Kong, which has been met with concern as it could erode the region's autonomy. The Basic Law, which has granted Hong Kong a high degree of autonomy since the end of British rule in 1997, is set to expire in 2047. However, the new security law, with its broad definitions of criminal acts such as secession and terrorism, and the establishment of Chinese institutions in Hong Kong, is seen as a move by China to assert control and potentially invalidate the Basic Law prematurely. The draft law's alignment with the Basic Law's Article 5, which preserves Hong Kong's capitalist system and way of life for 50 years, is questionable. The process to enact the security law is complex, requiring its inclusion in Annex III of the Basic Law and the promulgation of local legislation, indicating that China's efforts may face legal and procedural hurdles.

Opinions

The draft security law is viewed as a threat to Hong Kong's autonomy, likened to a 'shredder machine' for its autonomous status.
China's initiative to pass the security law suggests an intention to create ambiguities in the Basic Law, potentially weakening it before 2047.
The drafting committee of the Basic Law in 1985 foresaw the potential for such situations and included safeguards in Article 18 to limit China's ability to apply national legislation to Hong Kong.
The security law is seen as a strategic move by China to assert more control over Hong Kong, despite the region's unique status under the Basic Law.

Perils of Hong Kong Security Law

Hong Kong’s Autonomy is Shredding Apart

On the last week of May 2020, China stunned Hong Kong when it forwarded a draft resolution to its Parliament. That draft resolution enumerated details about imposing a security law on Hong Kong.

Like other security related legislation, this law empowers sweeping jurisdiction to describe any act criminal if it falls within the activity of secession, subversion, terrorism and sedition. To fulfill the purpose of the security law, the draft law empowers China to set up its own institution in Hong Kong.

To China, this draft law is a sincere gesture to bring some practical improvement in the Basic Law of Hong Kong! However, considering the unique status of Hong Kong in international order, this draft security law is a ‘shredder machine’ for the autonomy of Hong Kong.

The Basic Law and Autonomy of Hong Kong

The Basic Law came into effect when the British rule ended in the first day of July, 1997. This Basic Law empowers Hong Kong as Special Administrative Region denoting to high degree of autonomous power. To put in simple words, due to such autonomous status, China has to cede a lot of political control to Hong Kong.

Why China is so Desperate to Enact the Security Law?

The answer is hidden into the provision of the Basic Law. The Basic Law is assumed to be effective from 1997 for fifty years. In accordance with article 5 of the Basic Law, the capitalist system and way of life of Hong Kong should remain unchanged for fifty years. From that perspective, this mini constitution of Hong Kong will be effective till 2043. Till that time, China will have to cede a lot of political control to autonomous Hong Kong.

However, China is desperate to entwine this Basic Law with thicket of ambiguities. The recent initiative to pass the draft Security Law has been reiterating the hints that the Basic Law of Hong Kong might become feeble and ineffective much before its actual date of termination.

Can China Really Enact the Security Law in Hong Kong?

It won’t be that easy! Here comes the fail-safe mechanism of the Basic Law. Hats off to the Hong Kong Basic Law drafting committee members of 1985 who had forethought about such entangled situation! The wordings of the article 18 of the Basic Law limits China to apply its national legislation to Hong Kong. To enact the national law of China, there are two requisites which are complicated and time consuming. First, the draft security law should be listed in Annex III of the Basic Law. Secondly, the draft security law should be applied through promulgating local legislation.