Thursday, March 5, 2020

Cora Chan and Fiona de Londras on China's National Security in Hong Kong: A Challenge for Constitutionalism, Autonomy and the Rule of Law (new book chapter)

"Introduction: China's National Security in Hong Kong: A Challenge for Constitutionalism, Autonomy and the Rule of Law"
Cora Chan and Fiona de Londras
Introduction: For 30 years now, the Hong Kong people have persevered in holding an annual candlelight vigil on 4 June to commemorate the 1989 Tiananmen Square Massacre, urging the Chinese Government to admit it was wrong to perpetrate the massacre and to end one-party rule. Hong Kong is the only jurisdiction in China in which such a demonstration could openly take place. A former British colony and now a Special Administrative Region (SAR) of the People's Republic of China (PRC or China), since its return to Chinese sovereignty in 1997 Hong Kong has been governed under the framework of 'one country, two systems', which allows it to practice separate economic, legal and political systems from those on the mainland. The framework's aim is to preserve Hong Kong's distinctiveness vis-a-vis China, including its liberal rule of law tradition, which remains strong after more than two decades of Chinese rule. Yet, given China's intensifying national security advances and rising economic stature, real questions arise about how much longer, and by what means, this tradition can persist.
     In this book we aim to explore those questions, understanding them through the prism of the query suggested by its title - Does China's national security endanger Hong Kong's rule of law? - by investigating whether, and if so how, China's national security can be protected without jeopardizing the rule of law in Hong Kong. From the perspective of both China and Hong Kong this is a vitally important question, not least because it goes to the heart of whether 'one country, two systems' is a viable model for governing the constitutional relationship between them in the long run. Although the opening up of China's economy has rendered the economic differences between China and Hong Kong much less apparent than when that governing model was first conceived, their legal traditions remain highly divergent. For many Hong Kong people the biggest challenge in implementing 'one country, two systems' has been maintaining Hong Kong's vibrant common law system, with its respect for human rights and the separation of powers, within the envelope of China's Leninist legal system. A solution to that challenge would resolve the broader question of how to make this constitutional model work. This is of wider significance for China: from its perspective what is at stake is not just the ability to govern Hong Kong and continue utilizing the territory to facilitate its market reforms, but also the prospect of reunification with Taiwan, for which the 'one country, two systems' model was originally designed. What is at stake for the seven million inhabitants of Hong Kong is not just the ability to maintain a separate legal system, but the very identity of Hong Kong, which has long defined itself by being what China is not. For Hong Kong people, without the rule of law, the territory seems destined to become 'just another Chinese city'.
     When it comes to security, the relationship between China and Hong Kong, and the functioning of 'one country, two systems' are especially challenging; on the one hand, China fears that security risks to the overall state may foment and find operational space in Hong Kong and thus insists that the Hong Kong Government introduce what it considers 'appropriate' security-related laws; on the other, people in Hong Kong fear the imposition of such laws in a way that undermines their civil liberties, including liberties on the basis of which Beijing can be challenged, organised against and subjected to public criticism. Both concerns have purchase, both point towards the very real difficulties of reconciling two fundamentally different dispositions towards law and legality within one overall national legal system.

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