If Beijing wants to prove that its new security law won’t impede on Hong Kong’s freedoms, its best chance to do so would be through the law’s drafting.
Protesters at the Tiananmen Square Vigil, June 4, 2020. Photo courtesy of Harbour Times.
It started in the late 1980s. After extensive negotiations within the Basic Law Drafting Committee, it was agreed that, by virtue of Article 23 of the Basic Law, Hong Kong was to have the autonomy to enact national security laws “on its own”. It seemed at the time that the need for national security legislation directly from China had been dispensed with. It came as a shock to many when Beijing unveiled on 21 May this year its plan to bypass Hong Kong’s legislature to implement a national security law.
At a press conference days later, Chinese Foreign Minister Wang Yi said that the new law would not have an impact on the city’s high degree of autonomy, freedoms or interests of foreign investors, and that “people should have more confidence in Hong Kong’s future.” Yet, such confidence remains elusive 23 years after the handover. For starters, Japanese Prime Minister Shinzo Abe has just announced that Japan will be taking the lead in drafting a joint statement from the Group of Seven (G7) countries on the plan to introduce the law.
Despite Wang’s categorical denial that the new law would curb the high degree of autonomy enjoyed by the city, the mode of the new law’s introduction in itself provides little comfort to sceptics. At its core, the law is legislation that is being prescribed by a separate jurisdiction for the protection of a shared set of national interests. At play is the interaction between “two systems” in “one country”, and it seems that unresolved tensions and differing interpretations of the parameters of the “one country, two systems” principle are now coming to a head.
The concept of protecting national security through legislation is not necessarily undesirable in itself. National security is common among the legislative repertoire of many countries. However, not all national security laws are equal. Accordingly, Beijing’s move to introduce such legislation has resurfaced anxieties and skepticisms over Chinese administration that have been brewing since even before the 1984 Sino-British Joint Declaration.
Backers of the law who cite the global prevalence of national security legislation to allay concerns over enacting the new law are ignoring the main point of concern:public trust in the central government remains unresolved.
Hong Kong’s political unrest suggests that many Hongkongers are still far from being won over. The anti-government protests over the past year also demonstrate that residents will not shy away from making this known in ways that incense Beijing. In the circumstances, critics of the law find the push to implement it rather ominous.
Security Chief John Lee Ka-chiu is adamant that those enforcing the law would have to comply with common law principles. However, such assurances ring rather hollow when the contents of the law are unknown. Indeed, the new law will in principle operate under Hong Kong’s long-standing common law system, but this would only be meaningful if the law is drafted in line with common law principles, which include but are not limited to the presumption of innocence. Former Associate Justice of the US Supreme Court James Wilson once said, “Without liberty, law loses its nature and its name, and becomes oppression.”
At present, persuasion is still missing from the equation. If Beijing is to persuade Hongkongers and the world at large that the new law is not intended to – nor will it restrict – legitimate rights and freedoms, the legislative output must deliver such a message loud and clear. As it begins to sink in that the law will be incorporated into the territory’s constitutional landscape as a matter of course, the drafting of the law and its contents may very well be the only opportunity for the central government to quell the world’s worries.
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