Hong Kong carving its own path of repression

Hong Kong Chief Executive John Lee’s announcement that the Hong Kong Special Administrative Region (HKSAR) will introduce its own national security law in 2024 was a surprise to many given the effectiveness of the national security law Beijing imposed on the territory in 2020.

Political dissent has all but been crushed since mass pro-democracy protests shook the city in 2019. The imposition of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region has been central to that.

Hong Kong’s police and security apparatus are now openly guided by mainland Chinese agencies in a break from the post-1997 policies of autonomy and non-interference. They have targeted pro-democracy politicians, civil society organisers and media figures, with a promise to pursue overseas dissidents ‘for life’.

The 2020 national security law is an imposing piece of legal artillery with broad and flexible offences. It offers life imprisonment sentences and a presumption against bail, confers extraordinary powers and immunities on national security agencies and claims extraterritorial operation.

Article 23 of the Basic Law, Hong Kong’s main constitutional document, states that Hong Kong ‘shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government’.

The Hong Kong government has always understood itself to be required to pass such legislation, despite the continuing existence of colonial-era laws to similar effect. But its 2003 attempt to pass a comprehensive national security law was undone by widespread public opposition. It can now revisit the issue free from the prospect of mass demonstrations.

As the 2020 law uses relatively general terms, there is an opportunity with the introduction of a new law to fine-tune the regime. The government may choose to extend the law’s reach as its national security remit expands to include enhanced measures against espionage and treason. It may also legally support the patriotic recalibration of Hong Kong’s education system, which has proceeded apace since 2020. Whether Hong Kong will introduce mainland-style penalties like administrative detention remains to be seen, but if Beijing supports such a move then the HKSAR courts will not be able to resist.

Article 23 legislation will signal Hong Kong’s place in China’s national program, demonstrate the administration’s obedience to Beijing and reiterate to Hongkongers that they, too, must obey.

It also tells the international community that Hong Kong and China will, in words spoken by John Lee but undoubtedly penned in Beijing, ‘fully, faithfully and resolutely’ continue down the present path. To justify the forthcoming legislation, John Lee quoted Xia Baolong, China’s Director of the Hong Kong and Macao Affairs Office of the State Council, warning of ‘anti-China and destabilising activities camouflaged in the name of human rights, freedom, democracy and livelihood’.

In the final months of 2023, the HKSAR has issued many statements slamming international criticism of its crackdown on civil and political rights. Targets include the United States, the United Kingdom, the UN High Commissioner for Human Rights, foreign legal professional organisations and critics of its persecution of pro-democracy media mogul Jimmy Lai. The HKSAR has framed criticism of its extraterritorial arrest warrants as irresponsible and unsubstantiated — even as it actively threatens the families of dissidents living overseas.

This is a winding-back of Hong Kong’s long history of international engagement. The deployment of security laws against civil society sits uncomfortably with China’s demands for respect on the world stage and its status as a signatory to global human rights conventions.

These tensions played out in miniature when the Hong Kong government sought to deny Jimmy Lai’s access to the services of a foreign barrister for his national security case. Hong Kong’s courts dismissed the government’s arguments, only to be overruled by Beijing.

Hong Kong faces the same paradox as undemocratic regimes everywhere. Coercive measures may synthesise the benefits of legitimacy, particularly compliance and stability, but they undermine the government’s claims to authority and generate rightful resistance.

Beijing still subscribes to the belief that legality is a pathway to legitimacy. It also recognises that the ‘one country, two systems’ formula calls for Hong Kong to be governed by its own laws. This is why the colonial-era sedition offence is sometimes preferred to charges under the 2020 law. Likewise, Hong Kong national security legislation superficially suggests compliance with the Basic Law provisions for autonomy and self-government.

Beijing’s restraint toward Hong Kong expired in 2020 and the Hong Kong autonomy experiment is over. The new experiment is active internal colonialism. The overbearing national security regime is reminiscent of the broad sedition laws of the British empire. Hong Kong’s reconfigured ‘patriots only’ legislature is as much a rubber stamp as the appointed legislatures of British colonial Hong Kong. That makes the forthcoming legislation and whatever the political authority decides to do next, inevitable.

Referencing the 2019 protests, John Lee said that the root causes for ‘chaos’ had not yet been eliminated. Those root causes were, in fact, undemocratic and unresponsive government. As such, the national security law response addresses the symptoms while worsening the disease. But Hongkongers cannot safely say so.

Brendan Clift is Lecturer at Melbourne Law School, The University of Melbourne.

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