in Cora Chan & Fiona de Londras (eds), China's National Security: Endangering Hong Kong's Rule of Law? (Hart Publishing, March 2020),
Chapter 3, pp. 41-60
Chapter 3, pp. 41-60
Introduction: In his speech to celebrate the 20th anniversary of Hong Kong's return to China, President Xi highlighted two national security threats that Hong Kong may pose to China. One is the traditional concern of territorial integrity. While Xi did not specifically mention the emerging secessionist advocacy in Hong Kong, he made it clear that any attempt to harm China's sovereignty will be 'absolutely impermissible.' A second threat concerns the use of Hong Kong as a base to endanger China's security, broadly defined as 'us(ing) Hong Kong to carry out infiltration and sabotage activities against the mainland.' Those two threats in Hong Kong are microcosms of what China has claimed to be the larger national security threat that it faces.
In the eyes of the Central Government, those threats are not imagined. They are real and live issues facing Hong Kong and China. Coinciding with Xi's warning, Hong Kong courts have been handling down decisions on two types of cases: one is the disqualification of members of the Legislative Council (LegCo) from assuming legislative office for, essentially, their advocacy of Hong Kong's independence in violation of the oaths-taking law; and the other is criminal prosecution (ie a democratic movement demanding universal suffrage, widely known as the Occupy Central Movement, and riotous activities that followed it). Regarding both as posing a threat to its national security, China demands effective political and legal action to remove these risk factors.
This security concern is in many ways a subsidiary question to the working of the 'one country, two systems' policy which is considered in detail in other contributions to this volume. Xi's warning reflects a long standing and now entrenched fear that Hong Kong's high degree of autonomy, its growing impulse towards democracy, its political stagnation, and (as Beijing puts it) its occasional democratic violence may have turned a historically glorious city that China used shift in the balance that underpins 'one country, two systems' to give priority to the concept of sovereignty, central control over Hong Kong affairs, and above all of the contention is the demand from the Central Government for Hong Kong to enact national security legislation pursuant to Article 23 of the Basic Law.
This chapter discusses China's new national security regime that includes Hong Kong as an integral part, and its implications for Hong Kong's own domestic security laws. In particular, it will outline China's internal and external security in Hong Kong, and explore the critical questions of whether the introduction of a nationals security in Hong Kong is necessary or sufficient to address prevailing security concerns regarding Hong Kong and China, as well as its potential impact on rights and freedoms that Hong Kong treasures. China's Party State has given priority to stability and security as a development strategy and increasingly sees Hong Kong's democratic aspiration as a threat to China's national security. Since the failed attempt in 2003 to enact national security legislation, the Hong Kong Government has been reluctant to reactivate the legislative process, but how has Hong Kong as a whole and the courts in particular struck a balance between China's national security and Hong Kong's struggle for democracy and maintenance of rule of law? How has this small liberal city engaged in a mega constitutional dialogue with its authoritarian sovereign?