Policing and criminal law are matters within Hong Kong’s autonomy and powers that have been delegated to the Hong Kong Special Administrative Region (HKSAR). According to paragraph 2 of Article 14 of the Basic Law, “The Government of the Hong Kong Special Administrative Region shall be responsible for the maintenance of public order in the Region.” The Chinese military has a legitimate presence in Hong Kong for defence purposes. Under paragraph 1 of Article 14, the military in Hong Kong “shall not interfere in the local affairs of the Region.” The Chinese Garrison Law (which applies to Hong Kong as a national law listed in Annex III of the Basic Law and promulgated by the HKSAR) reiterates the non-interventionist principles. Article 5 of the Garrison Law itemises the defence functions that the garrison force may perform in Hong Kong and Article 9 also makes it explicit that the military shall not interfere with Hong Kong’s local affairs.
However, the central government may authorise military intervention in an otherwise local matter of policing and public order in two exceptional circumstances. The first is intervention on request under Article 14 of the Basic Law. According to paragraph 3 of that article, “The Government of the Hong Kong Special Administrative Region may, when necessary, ask the Central People's Government for assistance from the garrison in the maintenance of public order and in disaster relief.” In my view, the wording above clearly indicates the following:
(1) A request must be made by the HKSAR Government through the Chief Executive (CE), and no other government department, including the police, has the authority to make the request;
(2) The request must be made to the Central People’s Government (CPG);
(3) Military assistance may be requested for the purpose of either maintaining public order or disaster relief;
(4) The CE determines whether it is necessary to make a request for military assistance; and
(5) Upon request, the CPG may authorise the garrison force in Hong Kong, not any other security forces, such as the military police, which is in charge of riot control in the mainland, to assist.
The second form of military intervention is proactive intervention in an emergency situation. Paragraph 4 of Article 18 of the Basic Law provides, "In the event that the Standing Committee of the National People's Congress decides to declare a state of war or, by reason of turmoil within the Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the Region, decides that the Region is in a state of emergency, the Central People's Government may issue an order applying the relevant national laws in the Region". This paragraph provides an extraordinary procedure which, essentially, authorises the NPC Standing Committee and the CPG to apply mainland law directly in Hong Kong. The Basic Law provides three preconditions for the declaration of an emergency in Hong Kong:
(1) There is a turmoil;
(2) The turmoil endangers China’s national unity or national security; and
(3) The turmoil is beyond the control of the government of Hong Kong.
First, there must be a turmoil. It seems clear that the NPC Standing Committee has the power to determine whether a turmoil exists in Hong Kong. In addition, since paragraph 4 of Article 18 clearly relates to a matter outside Hong Kong’s autonomy, the NPC Standing Committee would make a determination according to Chinese law and procedures. The governing legislation on martial law in the mainland is the Martial Law (Chinese version) which was passed by the NPC Standing Committee in 1996. Unfortunately, while the Basic Law does not define turmoil or emergency with any clarity, the Martial Law does not provide further guidance either. Article 2 of the Martial Law states, "In an event of turmoil, riot or serious disturbance that severely endangers national unity, security or social and public order creating an emergent condition in which social order and people’s livelihood and property cannot be protected without using exceptional measures, the State may decide to implement martial law."
Martial law was previously imposed in parts of Beijing and Lhasa in 1989 and the current Martial Law has not been used since its enactment. Instead of invoking martial law measures, the government tends to use ordinary criminal law to maintain order in exceptional circumstances such as the riots and turmoil in Tibet in 2008 and in Urumqi in 2009. The government prefers to impose de facto martial law measures without formally invoking the Martial Law.
The second precondition is that the turmoil in Hong Kong engenders China’s national security. As the case in domestic law, whether a turmoil exists in Hong Kong is determined not merely by an objective assessment of the seriousness of a riot, unrest or disturbance, but also by a subjective interpretation of the NPC Standing Committee as to whether the riot, unrest or disturbance has posed a fundamental threat to China’s national security. National security is again an ill-defined term and can only be meaningfully decided in the special circumstances of a particular case. National security is a familiar term for people in Hong Kong. It was the subject-matter in 2003 in the saga of proposed Article 23 legislation. In the recent round of constitutional reform, China has again cited national security concerns as the main reason for limiting democratic participation in the 2017 CE election. Notwithstanding the inherent vagueness of the concept of national security, a clear sign to watch is whether the turmoil in Hong Kong, however defined, is having a significant impact in the mainland and has been effectively replicated in mainland cities.
The third precondition for an emergency in Hong Kong is the crucial factor that the turmoil is beyond the control of the Hong Kong government and, which means, in effect, that the CPG no longer has any trust that the Hong Kong government has the ability and/or the will to place the turmoil under effective control. Once the preconditions are satisfied and an emergency declared, the CPG would then issue an order to extend relevant national laws to Hong Kong, likely to include the Martial Law to impose martial law measures. Under Article 16 of the Garrison Law, the garrison force in Hong Kong bears the responsibility to enforce the national laws that are extended to Hong Kong during an emergency.
The invocation of Article 18 and the declaration of an emergency in Hong Kong would necessarily mean the suspension of the Basic Law and constitutional rights in Hong Kong, and effectively it signals the end of Hong Kong as we know it. This would be a disaster that neither Beijing nor Hong Kong wish to see. Given China’s ability and preference to preempt a constitutional crisis, it is very unlikely for the central authorities to allow Hong Kong to be dragged into an emergency. The Communist Party is well-known for its preemptive crisis management.
Therefore a more likely scenario, if it is to occur, is the application of Article 14 of the Basic Law through which the Hong Kong government would seek military assistance from the garrison force on the ground of assisting to restore public order before full-fledged turmoil appears in Hong Kong.
What if the Hong Kong Chief Executive, unable to restore order, resigns?ReplyDelete
Under BL Art 14(3) do we suppose that the CE will ask the Garrison troops to assist with the apprehension and arrest of the triads who apparently attacked demonstrators in multiple locations over he last few days, but who were able to miraculously evade police capture or arrest?ReplyDelete
If the root cause of the turmoil in Hong Kong is related to national security, Article 18 can bring the regime of relevant national security laws and the Martial Law into Hong Kong for a time to the extent when Hong Kong is to legislate for its own laws and/or organs under Article 23. In the meantime, CPG can lay charges against people in Hong Kong suspected of being a threat to national security. These suspects should be transported to a Court in China for prosecution under China relevant laws. Article 18 can be withdrawn when the NPCSC decides that the state of emergency or the threats to national security are under control.ReplyDelete
Article 4 (5) is relevant.Delete
Every country has its own version of the BL Article 23. The issue here is ... without Article 23, Hong Kong is severely handicapped to safeguard national security.ReplyDelete