China and Hong Kong: One Country, One and a Half Systems

The passing of Hong Kong’s national security law (NSL) marks the passing of the ‘One Country, Two Systems’. It is a significant curtailment of the ‘Hong Kong ruling Hong Kong’ principle underlying the Joint Declaration (JD) and the Basic Law (BL), Hong Kong’s ‘constitution’. Nothing illustrates that more starkly than the admission of Carrie Lam, the chief executive of Hong Kong, that she had not even seen the text of the law in advance of its imposition on her territory. 

On 1 July in Parliament, UK Foreign Secretary Dominic Raab called the NSL a ‘clear and serious breach of the JD’. He based this on the following arguments:

• It violates the ‘high degree of autonomy’ promised to Hong Kong. Only defence and foreign affairs are the purview of the central government. According to BL Article 23, Hong Kong is responsible for passing a NSL.
   
• It curtails the freedoms and rights protected by the JD by, in particular, creating the possibility of trying court cases related to alleged violations of the security legislation on the mainland, rather than under the territory’s judicial system.
   
• It could lead to potential conflicts with the International Covenant on Civil and Political Rights, whose application the JD guarantees.
   
• It interferes in the judiciary, which should be independent.
   
• It interferes in managing public order, which the JD lays down as a responsibility of the Hong Kong government. 
   
• Establishing a central government NSL office in Hong Kong contradicts BL Article 22.
   

It is more the manner than the timing of the NSL which surprises. In October 2019, the Chinese Communist Party (CCP) fourth plenum communique declared Beijing’s objective in the territory as that of aiming to ‘establish and improve the legal system and enforcement mechanism for safeguarding national security in special administrative regions’. Chinese language does not give a subject to the verb; in retrospect, this provided a convenient ambiguity disguising the intention to impose a law.

The NSL is a big step towards the CCP’s 2047 goal of ensuring that after ‘50 years without change’, Hong Kong becomes just another Chinese city, one of 10 with other cities of Guangdong province, a part of the important plan for a Greater Bay Area. The waypoints of that intention had so far eluded the CCP. In 2003, protests forced the abandonment of an earlier NSL; in 2012, they stopped the intention of introducing ‘patriotic education’ in Hong Kong’s schools; and last year, the extradition bill had to be withdrawn. Now the NSL has advanced towards those three goals – and more.

Why the Sudden Rush? 

To the extent that the mind of Zhongnanhai – the headquarters of China’s top leaders – can be interpreted, the underlying explanation which predates the coronavirus pandemic is likely to be found in a mixture of the following considerations:

• The siege of Hong Kong’s Polytechnic University in November took violence too far, as far as Beijing was concerned. It was not to recur and particularly not on 1 July, the anniversary of the return to China of Hong Kong.
   
• Fear that Beijing’s bottom lines might be crossed. In July 2019, quoting Xi Jinping, a spokesman for the Hong Kong and Macao Affairs office declared that protests must not ‘endanger national security or sovereignty, challenge the power of the central government or the authority of the Basic Law, or use Hong Kong as a base for activities that infiltrate or undermine the mainland’.
   
• Concern that in the September 2020 elections for the Legislative Council, democratic parties might win a majority and disrupt government business.
   
• A wider worry about foreign interference, which might increase in the currently febrile state of US–China relations.

 

President Xi has been losing patience with Hong Kong for some time, hence his appointment of ‘strongmen’ loyalists with no previous experience of the territory to positions controlling Hong Kong. The line-up of appointees presages tough treatment. Xia Baolong, head of the Hong Kong and Macao Affairs Office, made his reputation repressing religion in Zhejiang; Luo Huining, who is currently director of the Liaison Office of the Chinese central government, earned his spurs in dealing with corruption in Shanxi; and Zheng Yanxiong, now the director of the Office for Safeguarding National Security, earned his fame by suppressing unrest in the Guangdong village of Wukan after 2011. 

A Portmanteau Suppression

Hong Kong’s Emergency Regulations Ordinance should have been sufficient to quell protests. But the deliberately ill-defined crimes under the NSL, added to harsh penalties, have brought a different level of fear to protesters. Their ‘political virus’ is unlikely to spread to the mainland.

Article 6 lays down that those who stand for election or assume public office must confirm in writing or take an oath to uphold the BL in accordance with the NSL. According to CY Leung, former chief executive of Hong Kong, this means written support of the NSL and of opposition to Hong Kong and Taiwan independence. This looks like a prelude to the exclusion of certain democratic candidates from the September Legislative Council elections. 

The NSL allows for trial in China of sensitive cases. This, in effect, introduces the ‘extradition’ bill – the cause of last year’s protests – since the CCP can ‘exercise jurisdiction over a case if … a major and imminent threat to national security has occurred’ (NSL Article 55). Given the Party’s elastic application of laws in the mainland when its interests are threatened, it would be reasonable to assume that it will use this provision to repatriate important ‘targets’ of the CCP’s wrath.

The law also looks as though it will introduce a measure of ‘patriotic education’ into Hong Kong’s schools. Article 10 states that national security education is to be promoted in schools and universities. This is the thin end of the educational wedge. The Party has always put effort into controlling young minds. For the long term, it hopes to be able to duplicate that in Hong Kong. Schools have already started to ban the singing of songs associated with dissent and disapproved books are being removed from libraries.

Well before Hong Kong is absorbed into China by 2047, discrepancies between its inherited common law system and Chinese law will have to be ironed out. The NSL appears to have started this process. In its statement of 1 July, the Hong Kong Bar Association concludes that the NSL undermines ‘core pillars of the One Country Two Systems model including independent judicial power, the enjoyment of fundamental rights and liberties, and the vesting of legislative and executive power in local institutions’. The powers granted to the Office for Safeguarding National Security also chip away at Hong Kong’s legal system.

What Lies Behind CCP Insouciance?

Hong Kong matters to China: 70% of investment into and out of China goes through Hong Kong. In 2018, its stock market raised $35 billion for Chinese companies (compared to $21 billion within China). Its rule of law and lack of CCP interference – both now being undermined – allow it to eclipse Shenzhen and Shanghai as financial centres. And as long as China’s capital account – the record of inflows and outflows of capital – remains closed and the Chinese yuan is not a freely convertible currency, the importance of Hong Kong in the financial landscape will not change.

Yet as Zhang Xiaoming, the deputy head of the Hong Kong and Macao Office, made clear in June, the problem of Hong Kong is not economic or social, but political. For the CCP, politics – or its ‘three bottom lines’ (no threat to national security, no challenge to central power or to the authority of the BL, and no actions which use Hong Kong to infiltrate and harm the mainland) – trump everything. Furthermore, the CCP is likely to calculate that despite the current clamour, both Hong Kong and foreign countries will quieten down and continue to work with Beijing. This is what happened after the crushing of the nationwide unrest, which spread far wider than Tiananmen in 1989, and Beijing’s recent experience is that the West is neither unified nor consistent in upholding its values. This may have changed, but the Xi leadership may be betting that it has not.

Reacting to the UK’s Response

The CCP will try to undermine the scheme for British National (Overseas) passport holders to have a route to full British citizenship by, for example, removing their right to Hong Kong permanent residence or not recognising a BN(O) passport as a valid travel document, putting pressure on companies who employ applicants, or on government officials who apply. 

But there is wider turbulence ahead. The removal of Huawei from the UK’s future wireless network, the two recent judgements (there are more to come, as well as penalties to be imposed) by Ofcom – the UK’s media regulator – against CGTN, China’s state broadcaster, which was found to be in ‘serious’ violation of UK broadcasting laws, the confrontation over Hong Kong and possible measures over Xinjiang are likely to put the UK in the diplomatic doghouse.

We can expect cancellations of political and ministerial meetings; threats against exports, investment, the City, students and tourism; and an upsurge in cyber attacks. As I have argued elsewhere, those threats are by no means as serious as many assume. Nevertheless, the likelihood is that the UK will be joining much of the rest of the democratic world in the ‘naughty corner’. If there was ever such a thing as the ‘golden era’, it no longer exists. 

The views expressed in this Commentary are the author’s, and do not represent those of RUSI or any other institution.