4 Takeaways From Beijing's Hong Kong Power Grab
China is moving closer toward imposing a sweeping national security law on Hong Kong, which activists and pro-democracy lawmakers say would effectively end whatever autonomy the city enjoys from Beijing.
On Thursday, China's national legislature approved a motion to begin drafting the law, which would prohibit four broad categories of activity in Hong Kong: sedition, subversion of state power, foreign interference and terrorism — as defined by China.
Legal scholars question whether Beijing has the authority to impose this law on Hong Kong. Under the principle Beijing calls "one country, two systems," the territory is responsible for its own governance.
Here are four takeaways about Beijing's Hong Kong power grab.
Beijing says its actions are perfectly legal. But that's not at all clear.
The influential Standing Committee of the National People's Congress (NPC), China's legislature, will vote the Hong Kong national security bill into law. Once passed, China says it will be implemented in Hong Kong through a clause in the Hong Kong Basic Law — effectively the city's mini-constitution — called Annex III. The annex is a list of mainland laws that also apply to the area formally known as the Hong Kong Special Administrative Region.
Pro-democracy activists argue this unilateral move by Beijing not only violates Hong Kong laws but also an international treaty — the Sino-British Joint Declaration on the question of Hong Kong — which promised Hong Kong 50 years of limited autonomy under Chinese rule.
What's more, Article 18 of Hong Kong's mini-constitution says any laws Beijing wants to apply to Hong Kong through Annex III must be "those relating to defense and foreign affairs as well as other matters outside the limits of [Hong Kong's] autonomy."
It is far from clear how a national security law would fall under either defense or foreign affairs. As legal scholar Alvin Cheung writes, for such an interpretation of Article 18 to include national security would "stretch the meaning of 'defense' beyond acceptable bounds."
Beijing says the impact of the new law will be limited. Pro-democracy activists are skeptical.
Beijing has argued any national security law would apply only to a very small slice of Hong Kong's population — those it considers terrorists or separatists — and thus does not violate the terms of Hong Kong's semiautonomous status.
"The NPC decision is targeted at a narrow category of acts that seriously jeopardize national security," Wang Yi, China's foreign minister, told reporters this month. "It does not affect the high degree of autonomy in Hong Kong. It does not affect the rights and freedoms enjoyed by Hong Kong residents. And it does not affect the legitimate rights and interests of foreign investors in Hong Kong."
But Beijing would decide who falls under the provisions of the law. It has frequently referred to Hong Kong's sometimes violent pro-democracy protests as the work of "terrorists."
Beijing's move is not without local support.
Hong Kong lawmakers tried to pass a similar national security law in 2003, but it was ultimately suspended after mass public demonstrations against the proposed bill.
Pro-Beijing lawmakers have long argued that Hong Kong must pass some sort of national security law because of Article 23 in Hong Kong's constitution, which mandates that Hong Kong one day do so.
But that requirement raises questions about whether Beijing can implement the law on behalf of Hong Kong.
"The very fact that Article 23 requires Hong Kong to legislate on national security indicates that national security is within [Hong Kong's] autonomy," and thus is not in Beijing's wheelhouse, write Changhao Wei and Taige Hu at the blog NPC Observer, which tracks China's legislature.
However, Beijing has said while Article 23 obligates Hong Kong to enact some kind of national security law, it is not the only authority allowed to do so — meaning Beijing can step in, as it is doing now.
China's national security forces, not Hong Kong's, will likely enforce the law; and Beijing, not Hong Kong, will likely decide what's legal.
China's congress has said a final national security law would allow the country "to establish and improve the legal system and enforcement mechanisms for the [Hong Kong Special Administrative Region] ... to prevent, stop and punish activities endangering national security in accordance with the law."
Hong Kong currently has its own police force and independent judicial system. China's People's Liberation Army keeps a garrison in Hong Kong, but it must abide by Hong Kong's laws. That could all change if the new national security law is enacted.
"Does that mean [Beijing is] going to have a branch of the Public Security Bureau or something in Hong Kong to try to enforce the law in Hong Kong?" asks Michael C. Davis, a fellow at the Wilson Center. The Public Security Bureau is China's equivalent of a police force.
One of Beijing's challenges will be to implement the new law within Hong Kong's very different judicial system, which has decades of legal precedents establishing strong protections for civil liberties such as freedom of speech.
"The clashes are ideological. It's [China's] Leninist authoritarianism versus [Hong Kong's] liberal constitutionalism," says Cora Chan, a law professor at the University of Hong Kong.
Despite the clear legal conflicts, Chan says it's yet unclear whether the proposed national security legislation will be considered a Hong Kong law and thus subject to Hong Kong courts.
"Under [Hong Kong's] common law principles, laws that limit human rights have to be sufficiently precise and proportionate and if they are not they can be struck down for being unconstitutional. Do Hong Kong courts have powers of reviewing the impending national security law for compatibility?" says Chan.
Even if Hong Kong courts could review the proposed national security law, political pressure would strongly deter rulings counter to Beijing's aims.
"Judges will not be blind to the fact that if they rule against this law, even if that's what the previous court cases suggest, then almost certainly the [Beijing NPC] standing committee will then come in and say, 'no, you were wrong,' " says Danny Gittings, a legal scholar who studies constitutional issues in Hong Kong.
Hong Kong's Bar Association, the city's top legal professional organization, already says it opposes the proposed law because Beijing has no authority to promulgate a law unilaterally. What's more, the association says it violates an international treaty on human rights.
A number of international law organizations and the New York City Bar Association have also voiced criticism.
Ultimately, the Standing Committee of China's legislature has the final say in whether a law is constitutional — meaning it could overrule any Hong Kong court decision on national security.
"The realist argument is it doesn't really matter what anyone says because the NPC Standing Committee can interpret the Basic Law," Cheung says, "and we have seen it will interpret it in a politically expedient matter every single time."