Beijing’s agenda to enact national security legislation governing Hong Kong: some initial thoughts

By Jerome A. Cohen

Obviously the current plan to enact national security legislation governing Hong Kong is not Beijing’s preferred way but is a mark of desperation. If it had been attempted much earlier in the post-’97 period, especially before the Article 23 fiasco in Hong Kong in 2003, it might have passed legal muster without creating as much consternation as it does now.

At this time, however, coming in the wake of the failures to enact relevant security legislation via Article 23 and the inability of LegCo to do so in the future on its own, Beijing’s current move certainly looks like a clever trick that inevitably inspires even greater popular distrust than ever in the NPC Standing Committee’s interpretations of the Basic Law.

The NPC Standing Committee will undoubtedly prevail in technical PRC legal terms, given the wording and structure of the Basic Law, the provisions for its interpretation and the way those provisions have been applied in recent years. But the political costs to the Central Government and the people of Hong Kong will be very high.

This will not be the formal end of “One Country Two Systems,” but it is surely a mortal wound to the living, meaningful system that many had been misled into hoping for. The people of Hong Kong should prepare to cope with the varieties of arbitrary detention that have been inflicted on compatriots elsewhere in China who have tried to exercise freedoms of expression. The Ministry of Public Security and the Ministry of National Security will no longer have to operate secretly in the SAR. Both will soon have agencies formally and openly established there. Their promised “enforcement mechanisms” can be relied upon to eliminate dissent in Hong Kong almost as efficiently as they have done on the Mainland.

There are many ways that the United States, the UK and other democratic countries can strongly react to Beijing’s latest legal legerdemain. Perhaps Washington will invoke some aspects of existing federal legislation relating to Hong Kong, but I hope it does not act in ways that will penalize Hong Kong’s already long-suffering people rather than the regime that increasingly dictates to them.