JOCELYN CHEY. Hong Kong’s Fate in the Balance

A national security bill for Hong Kong will be put to the National People’s Congress (NPC) now meeting in Beijing. This aims to end an impasse in Hong Kong’s Legislative Council, which has never passed local legislation to enact Article 23 of the Basic Law, Hong Kong’s mini constitution, to which the citizens of the Special Administrative Region (SAR) remain adamantly opposed.

More protests are inevitable in the lead up to the anniversary of 4 June 1989 (which China calls an “incident,” and others, a “massacre”).

Wang Chen, Vice Chairman of the Standing Committee, told deputies at the opening meeting of the NPC on 22 May that draft legislation on Hong Kong security had been submitted to the top legislature and was expected to be enacted within weeks. Beijing is strengthening collection of information and evidence of threats to national security in the SAR. Hong Kong delegates to the NPC told the Global Times that the proposed new law did not contravene the “One Country Two Systems” under which the SAR is guaranteed a high degree of autonomy.

Article 23 of Hong Kong’s Basic Law reads:

“The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organisations or bodies from conducting political activities in the Region, and to prohibit political organisations or bodies of the Region from establishing ties with foreign political organisations or bodies.”

Even before the return of Hong Kong to Chinese sovereignty in 1997, this was the most controversial part of the Basic Law. The wording was strengthened after the founding of the Hong Kong Alliance for the Support of Democracy in China led by Martin Lee and Szeto Wah in 1989, but it was never enshrined in local legislation as originally intended.

Last British Governor, Chris Patten, did not make protection against the consequences of Article 23 a priority for action during his term of office, and in 2016, when it was clear that proposals to enact the provisions had provoked violent local protests, he said, “One reason why I didn’t think we needed to do anything about Article 23 was that I thought that subversion was something which I was unlikely to encounter as governor of Hong Kong. It has a sort of rather quaint Leninist tone to it and pretty well since the 17th century – Guy Fawkes and all that – subversion hasn’t been a big issue in British politics.” How wrong he was! This weekend Patten told The Times that the proposed legislation is a “death knell.”

Treason, secession, subversion, theft of state secrets, are all serious matters, but an autocratic government may arbitrarily define them in an ad-hoc manner without the right of challenge. This ambiguity concerns Hong Kong and the international community. Freedom of speech is guaranteed under Hong Kong’s Basic Law, but in future criticism of Beijing may be illegal, those who share their concerns with other countries may be arrested, and, if the court standards of the mainland are applied in Hong Kong along with the proposed legislation, all cases involving “national security” could be heard behind closed doors with no right of review.

While Vice Premier Han Zheng sought to calm fears over the weekend, telling Hong Kong delegates to the NPC that only a few people would be targeted by the legislation, former Chief Executive Leung Chun-ying said Beijing could authorise Hong Kong to establish an intelligence agency like the Special Branch of the old British administration. The SB effectively countered corruption and Triad (secret society) activities, but also housed British MI6 agents working in China. When it was disbanded in 1997, local officers transferred to the new government’s Security Wing. It seems that Beijing’s proposed new agency will revive a similar intelligence function monitoring local and international activities.

Most Western democracies have security laws against terrorism. The Morrison government has introduced acts to guard against what it regards as an increasingly threatening international environment. Each case has been hotly debated, and all are subject to regular review by parliamentary committees and the Independent National Security Monitor. Such mechanisms do not exist in China.

With this new legislation Beijing will first target the group that state media call the “Gang of Four”, reverting to Cultural Revolution terminology. The group includes former Chief Secretary Anson Chan and Martin Lee Chu-ming, founder of the Democratic Party, both of whom have visited Australia to talk about threats to Hong Kong’s future. The other two are Albert Ho Chun-yan, former chairman of the Democratic Party, and Jimmy Lai Chee-ying, founder of Next Media. Ho was attacked and beaten by unidentified thugs in September last year, and in the same month Lai’s home was firebombed. Eighty-one-year-old Martin Lee was arrested this April with fourteen other pro-democracy figures, on charges of illegal assembly.

On 23 May Foreign Minister Marise Payne and her British and Canadian counterparts issued a joint statement registering “deep concern” about the proposed Chinese security legislation. The statement refers to the Joint Declaration that guarantees Hong Kong a high degree of autonomy and states that provisions of the United Nations conventions on human rights will remain in force.

This weekend, in spite of corona virus regulations, Hong Kong citizens have taken their protests onto the streets. Over the next fortnight there will undoubtedly be more civil disobedience, probably culminating in observance of the anniversary of the Fourth of June. How to demonstrate firm and effective support for the people of Hong Kong – who include around 100,000 Australian citizens – will be a test of our already-strained relations with Beijing.

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Jocelyn Chey is Visiting Professor at the University of Sydney and Adjunct Professor at Western Sydney University and UTS. She formerly held diplomatic posts in China and Hong Kong. She is a member of the Order of Australia (AM) and a Fellow of the Australian Institute of International Affairs.

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