Hong Kong security law will trigger fierce backlash
China is bypassing Hong Kong’s legislature to introduce controversial new anti-sedition legislation
China’s central government is using a process that bypasses Hong Kong’s legislature to pass a law that criminalises ‘sedition’ in Hong Kong and allows mainland state security organs to operate there. This will reduce the scope of political freedoms and autonomy in Hong Kong.
What next
The move will re-ignite Hong Kong’s protest movement, which subsided during the COVID-19 pandemic. Beijing will now take a more assertive role in Hong Kong affairs, moving away from the largely hands-off approach adopted so far. The legislation will alter foreign perceptions of Hong Kong, prompting changes in US government policies and reducing its attractiveness to international business.
Subsidiary Impacts
- Activist and confrontational factions within the protest movement will probably gain more influence over moderate elements.
- A legislative election on September 6 is likely to proceed as planned; opposition candidates will probably do well.
- Western governments, firms and NGOs will feel pressure to lower their stakes in Hong Kong.
- Mainland Chinese firms will probably fill the vacuum, tying Hong Kong’s economy more closely to the mainland’s.
- Regional cities such as Singapore, Tokyo and Taipei will probably benefit.
Analysis
Details emerged on May 21 that mainland China's legislature was going to approve a plan to insert national security legislation into Hong Kong's Basic Law, the city's constitution. The draft resolution has two main elements:
- making sedition, terrorism and foreign interference, and the solicitation of such actions, crimes in the city; and
- establishing local offices for mainland security agencies.
The legislation's specifics are not yet available. Both Hong Kong and Beijing have tried to tamp down concerns by stating that the changes will be narrowly tailored to Hong Kong's circumstances.
Background
Hong Kong has technically been obliged to pass some form of national security legislation since its handover to China in 1997. This is stipulated by Article 23 of the Basic Law. The Hong Kong government attempted to pass Article 23 legislation in 2003, but withdrew it after mass protests.
Members of the pro-Beijing establishment called again for such legislation in the wake of the 2014 Occupy protests, the rise of Hong Kong independence activism and unprecedented political violence last year, but successive Hong Kong administrations have demurred, fearing public anger.
Sources in Beijing specifically cited the difficulty of Hong Kong's local political environment as the reason why Beijing initiated the legislation this time, rather than waiting for Hong Kong's legislature to do it.
Beijing-linked commentators and Hong Kong government officials have said that Hong Kong's national security legislation will not be modelled on mainland China's, but instead tailored to Hong Kong's situation. They said that local branches of mainland security bodies are unlikely to have enforcement power, instead relying on the Hong Kong police and judiciary. Pledges have also been made that the legislation will be designed around Hong Kong's political rights.
However, these assurances are unlikely to convince Hong Kong's population, which generally disbelieves statements from both the Hong Kong government and Beijing.
Protests have already begun. Police on May 24 fired tear gas for the first time since the COVID-19 pandemic began (see HONG KONG: Politics will heat up as lockdown eases - May 13, 2020).
Annex III
Beijing is forcing the legislation on Hong Kong using Annex III of the Basic Law, which allows Beijing to determine laws that must be passed in the city.
In previous instances, such as legislation criminalising the desecration of the Chinese national flag or anthem, Beijing chose to let the Legislative Council determine the content of legislation.
This time, Beijing has decided to apply national security legislation by promulgation. Hong Kong's legislature will not get a chance to amend or vote on the bill.
This will hit at least one complication. However the law is drafted, it will still need to be implemented, applied and enforced under Hong Kong's legal system. Hong Kong's legal system operates on different principles from mainland China's. Hong Kong has long precedents protecting free speech. Hong Kong courts sometimes rule against the government, as shown by recent cases in which courts overturned a ban on masks during last year's protests and reversed specific election bans on pro-democracy candidates.
The application of national security legislation will likely be a legal minefield
Why now?
Beijing's unprecedented use of Annex III reveals a desire to take more direct ownership of Hong Kong affairs. Beijing has had this power since the handover, but did not use it immediately after national security legislation failed the first time.
Several factors may explain the change.
First, Beijing is probably tired of waiting for Hong Kong to pass national security legislation, especially in the wake of large and violent protests and increasingly overt anti-Chinese sentiment.
Second, Hong Kong's government appears particularly dysfunctional at present. Over the past year it has failed to pass other significant legislation and to pacify protests. More recently, obstructionism in the Legislative Council led to the ejection of a committee chair from the pan-democrat opposition, leading to physical brawls between lawmakers on May 18 as the pro-Beijing establishment tried to retake control.
Third, deteriorating relations with Washington and other Western governments have drastically reduced the upside for Beijing of restraint towards Hong Kong.
Fourth, some of the economic costs from a likely reinvigoration of the protest movement are less relevant due to the COVID-19 pandemic. For example, a reinvigorated protest movement would have been another blow to the city's tourism sector, except that because of the pandemic Hong Kong is unlikely to see many visitors over the next six to nine months anyway.
Overseas reaction
Beijing says it is drawing up narrow legislation, and may even believe it
Beijing's assurances will not prevent damage to the city's international reputation, due to widespread lack of trust in mainland China's legal system and Beijing's broad application of 'national security' to an unusually wide range of issues.
The first official shift will likely come from the United States. Under the Hong Kong Human Rights and Democracy Act passed last year, the State Department has until the end of the month to determine whether Hong Kong still counts as sufficiently autonomous to warrant continued special treatment under US law (see HONG KONG/US: Sanctions law will have enduring impact - December 9, 2019).
Even if the State Department deems it to be so, there will likely be significant congressional pressure to impose sanctions or start rolling back some of Hong Kong's unique privileges.
Treatment of Hong Kong was already trending in this direction. For example, on April 9, the Justice Department refused to give Google permission to turn on a high-speed internet cable to Hong Kong for reasons of national security.
There will also likely be reactions among international business and NGOs. Even if their activities are not specifically proscribed, international NGOs may decide that Hong Kong is no longer a safe base for their mainland China programmes. International media may feel the same, halting any expansion plans in Hong Kong and shifting to other cities instead.
The reaction of foreign firms will be more mixed.
On the one hand, Hong Kong still possesses world-class institutions and financial markets, and its access to China remains unmatched.
On the other, foreign firms, especially financial and consulting firms, may shift operations that require privacy, confidentiality and the need to avoid political pressure to cities such as Singapore or Tokyo.
