On June 30, 2020 at 11.00 p.m. local time, the chief executive of the Hong Kong government promulgated the so-called Hong Kong National Security Law (NSL) just enacted by the Standing Committee of the National People’s Congress (NPCSC) in Beijing earlier on the same day. China’s legislative move has been criticized for undermining the status quo of Hong Kong. Since the British handover of Hong Kong to China in 1997, Hong Kongers have managed to preserve their own lifestyle with a “high degree of autonomy” under the “one country, two systems (OCTS)” constitutional arrangement with mainland China, as enshrined in the Sino-British Joint Declaration of 1984 and Hong Kong’s “mini-constitution” – the Hong Kong Basic Law.
Thus, reactions from freedom-loving countries have been vociferous, accusing China of breaching its obligations under international law and fundamentally changing the domestic legal framework governing its relationship with Hong Kong. Yet wrangling over the question of legality distracts attention from the true character of the NSL: China’s putsch in Hong Kong through a legal blitzkrieg.
What’s in the Law?
In one sense, China’s latest move on Hong Kong is no surprise. It is merely another chapter in China’s playbook for moving Hong Kong in the direction of “one country” at the expense of the distinction between their “two systems.” Also it was no secret that China would respond to the continuous and massive pro-democracy protests in Hong Kong prompted by the aborted extradition bill since last summer.
Yet the far-reaching scope of the NSL exceeds anyone’s imagination. In stark contrast to the Macau version of a national security law, which was enacted by the Macau legislature – instead of the NPCSC – under article 23 of the Macau Basic Law, the NSL casts its dragnet far and wide. Not only are the provisions for national security crimes vague (articles 20-29) but the law also broadly authorizes the Hong Kong government to take a wide array of administrative measures to enhance national security (articles 3, 9-10), including the ban on libraries’ shelving of some publications deemed detrimental to national security. Apart from the substantive provisions for criminal punishment and administrative measures, the NSL effectively creates a special national security tribunal system by providing that only the judges in a pre-approved list are eligible to preside over the proceedings on national security criminal cases under rules that deviate from the ordinary procedures in Hong Kong courts (articles 41-44, 46-47).
Furthermore, the NSL allows for the stationing of Chinese national security apparatuses in Hong Kong (articles 15 and 48) and the investigation and trial of national security crimes by the machinery of law enforcement of mainland China under ill-defined circumstances (articles 55-56). As a result, the statutory firewall precluding Hong Kongers from extradition to mainland China under the Hong Kong legislation – which many Hong Kongers have fought hard to preserve since last summer – can now be circumvented at the stroke of a pen (articles 55-57). Last but not least, the NSL defines its jurisdiction over extraterritorial crimes under the protective principle (article 38), thereby extending its dragnet worldwide.
Yet, the harm the NSL does to Hong Kong is far more serious than its problematic text on substance, procedure, and institution indicates. The full ramifications of the penetrating NSL to the autonomy of Hong Kong cannot be duly appreciated without looking into the way it was delivered and the target it locks onto. Shock and awe underlies Beijing’s push for the NSL.
Moving at Speed
As noted above, the NSL became effective in Hong Kong by way of executive promulgation less than 24 hours after President Xi Jinping gave his signature. Before the ink was dry, the Hong Kong police had already made the first arrests under the new legislation while officials from both mainland China and Hong Kong were celebrating the 23rd anniversary of the British handover of Hong Kong to China on July 1.
By July 3, another 48 hours from its coming into force, the NSL machine was already in full operation. While China designated the director of its liaison office in Hong Kong as the first national security adviser to the Hong Kong government and filled the post of the director of the newly created Office for Safeguarding National Security in Hong Kong, Hong Kong’s chief executive selected six unnamed magistrates to hear cases under the new legislation.
The first charge concerning national security crimes was filed on July 6. On the same day, acting under the advice of the Beijing-appointed national security adviser, the new National Security Committee – comprising the chief executive and a coterie of departmental heads of the Hong Kong government – held its first meeting and promulgated the 116-page Implementation Rules concerning article 43 of the NSL, which came into effect the next day.
Within a week after Xi inked the NSL, China’s new national security machinery was at full throttle in Hong Kong — even before the official opening of the Office for Safeguarding National Security in Hong Kong. The speed at which the NSL was set in motion surprised all keen observers of Hong Kong, to say the least. Yet speed is not the only feature of the new legislation that comes as a surprise.
A Brazen Pushback to Pro-Democracy Protests
Since the massive pro-democracy protests in Hong Kong broke out in mid-2019, the world has anticipated Beijing’s pushback. Following the conclusion of the fourth plenary session of the 19th Central Committee of the Chinese Communist Party on October 31, 2019, China was expected to pressure the Hong Kong legislature to push through national security legislation as mandated under article 23 of the Hong Kong Basic Law, which was first attempted and eventually aborted in 2003. Even so, when the news was broken to the world in May 2020 that Beijing would bypass the Hong Kong legislature and impose a Hong Kong-only national security law of its own making, it stunned everyone. No one could have imagined that Beijing would flout the relevant provisions in the Hong Kong Basic Law with such brazenness. But this is far from the end of the shockwave Beijing would send to the world in its pushback against the pro-democracy movement in Hong Kong.
As if to challenge the imagination of the freedom-loving people, Beijing made it clear that it would extend its national security apparatuses to Hong Kong and the chief executive of Hong Kong would be given the power to select judges to hear cases arising under the prospective legislation when it unveiled the summary of the NSL bill on June 20. As judicial independence is the underpinning of the rule of law Hong Kongers have long taken pride in, the provision for selected judges in charge of national security cases was simply inconceivable unless the OCTS principle was explicitly denounced.
Nevertheless, when the full text of the NSL was made public on June 30, it sent chills down the spines of people within and without Hong Kong. To respond to international lobbying for sanctions against the Hong Kong police’s repressive measures against the pro-democracy protestors, the NSL criminalizes acts of collusion with foreign powers (articles 29-30). As a show of defiance in the face of the protests against the extradition bill, the NSL provides for the jurisdiction of the courts in mainland China over crimes committed in Hong Kong (article 56). In this way, with or without an extradition agreement between mainland China and Hong Kong, Hong Kongers who fall in the jurisdiction of mainland courts under the NSL will be automatically removed from Hong Kong to mainland China (article 57). The length and scope of the Implementation Rules concerning article 43 of the NSL is as astonishing as the parental NSL itself, as it delegates a wide range of enforcement powers to the police. The NSL is every inch Beijing’s brazen pushback against the pro-democracy movement in Hong Kong. And this takes us to the heart of China’s NSL pushback: at attack on the rule of law.
Striking at the Heart of Hong Kong
Apart from its speed and brazenness, the NSL is even more shocking when we close in on its chosen target. As suggested above, Beijing’s brazen pushback through the NSL centers on the weakening of the judicial role in the administration of justice. On the one hand, a de facto special tribunal scheme is carved out of the Hong Kong court system (articles 41-44, 46-47), while the judge is mandated to reject requests for bail in judicial proceedings dealing with national security crimes in principle (article 42). On the other hand, the police powers are substantially expanded with limited judicial oversight (article 43). To no one’s surprise, it is Beijing that will call the shots when determining whether the Hong Kong court has jurisdiction in individual cases (article 55). Furthermore, decisions made by the powerful National Security Committee are not subject to judicial review (article 14), neutralizing the institutional mainstay of the rule of law holding the executive power to account. In a word, the rule of law Hong Kongers have long rallied around is the very target of China’s pushback under the guise of the NSL.
Thus, the NSL strikes at the core of the identity of Hong Kong as an autonomous region – the rule of law. By extending its national security apparatuses to Hong Kong, expanding the powers wielded by the local police in Hong Kong, and clipping the wings of the Hong Kong judiciary, China is installing a national security-centered ruling machine alongside Hong Kong’s established rule of law. The NSL strikes at the heart of the pro-democracy movement in Hong Kong by intruding into the core of the rule of law.
There is no denying that the rule of law in Hong Kong is still breathing. Yet this normative space now has to live with, if not at the mercy of, a different animal that is fanatic about national security and acts under the mindset of prerogatives rather than legality. With the NSL arrives the “dual state” in Hong Kong.
Putsch Is What China’s Legal Blitzkrieg Is All About
The speed at which the NSL is pushed through, the brazenness with which Beijing reacted to pro-democracy voices from within and without Hong Kong, and the chosen target of China’s blitzkrieg strategy – the rule of law – all testify to Beijing’s cunning calculation in its latest move on Hong Kong. The very fact that Beijing deviated from past practice by passing the NSL unaccompanied by an authenticated English translation further betrays the objective of China’s legal blitzkrieg. Without such translation, the non-permanent foreign judges at the core of the Hong Kong judiciary will be effectively rendered ineligible to hear cases arising under the NSL.
All in all, the NSL has nothing to do with restoring law and order in Hong Kong. Nor does it have anything to do with safeguarding China’s national security. Rather, the NSL is aimed at the autonomous status of Hong Kong under the OCTS formula. As the Beijing-directed national security machine will be holding sway in Hong Kong in all matters related to national security in the post-NSL era, China is effectively beginning to take over the administration of Hong Kong in the name of national security. To put it bluntly, the NSL of 2020 is Beijing’s putsch in Hong Kong.
Paralleling the putsch in Prussia by the Papen government in 1932 on the eve of the Nazis coming to power in Germany, Beijing’s putsch in Hong Kong through legislation is executed in a way that maximum shock and awe can be felt in the world. And Hong Kong is by no means the terminus of China’s blitzkrieg. Concealed from the ambiance of shock and awe is the comprehensive scenario planning and robust war game simulation in China’s preparation for its legal blitzkrieg. To push back China’s putsch, those who are determined to stand with Hong Kongers need to think as hard as the strategists behind the NSL in planning the counterstrategy.
Dr. Ming-Sung Kuo is an associate professor of law at University of Warwick in the U.K. where he teaches constitutional law and international law.