Picture: AP Photo/Vincent Yu
Picture: AP Photo/Vincent Yu

Hong Kong national security legislation explained

By Paul Tembe Time of article published Jun 15, 2020

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The third session of the 13th National People's Congress (NPC) was held at the Great Hall of the People in Beijing on May 22, where a decision to introduce the Hong Kong National Security Legislation (HKNSL) was taken.

What does the HKNSL mean to people and businesses in Hong Kong and why is it important? In its announcement of the HKNSL, China has stated that the policy is aimed at increased activities that jeopardize national security. The legislation is meant to lay a solid institutional foundation for the steady and enduring growth of "one country, two systems." This is in line with ensuring that the Hong Kong Special Administrative Region (HKSAR) residents' extensive rights and freedoms remain fully protected. The legislation does not affect HKSAR courts which exercise independent judicial power through the exercise of the Basic Law of Hong Kong that helps govern the region along the principles of the ‘one country two systems’.

Since the HKSAR handover to China the region has experienced perennial protests, culminating in the ‘Umbrella Revolution’ in September 2014 to those witnessed presently. The majority of observers, reporters and analysts have tended to frame the events as a war between democratic and communist forces. Overlooked is a deeper struggle between two visions of social order, with Hong Kong protesters advocating individual freedoms and the Mainland insisting on ‘unity’ under the framework of a ‘harmonious society’ spanning greater China. 

The aim of the article is to raise awareness among South Africans on the issue of the HKNSL. It is meant to shed some light on the ‘One country Two systems’ policy and how the current HKNSL fits the current legislation in the HKSAR. The article also aims to answer whether China has a right to set its own house in order without any interference from the outside world. 

The announcement of the new HKNSL has sent waves and reaction across the Atlantic with the US and European nations crying foul, adding fuel to an already unstable situation in the city island of Hong Kong in China. The reaction by the Western world to the HKNSL may be considered by some as justified. The west suggests that the HKNSL will wipe away whatever freedoms that Hong Kong had left. Some even accuse the newly proposed legislation of going against the policy of ‘One Country Two Systems’. Seething underneath such rhetoric is the ongoing China-US trade war, the Covid 19 blame game, and the undermining of China’s health diplomacy worldwide. 

Let us, for a second, move away from the question of whether the West is justified in blaming China for the newly announced security legislation. Instead, let us regard the background upon which the Hong Kong National Security Legislation takes place. The very name of Hong Kong as a Special Administrative Region (HKSAR) of the People’s Republic of China presupposes that the island city is part of the sovereign state of China. The special status of HKSAR was awarded during the handover agreement between the United Kingdom and China in 1 July 1997. 

Given the above circumstances, one is meant to understand that whatever the United Kingdom and United States may say regarding HKSAR is mere opinion. Anything beyond that may risk being regarded as interference in China’s sovereign affairs. The article attempts to answer two background questions that serve as a foundation for relations between HKSAR and the central government in Beijing. What is the legal and political background and framework of the HKSAR? In simple terms, how did the HKSAR come to be in its current state?  

The legal and political framework for relations between the HKSAR and
the Central Government relies on the ‘One country, two systems’ policy of the PRC
promulgated in 1983 by the NPC, adopted to “realise the peaceful reunification of the country” and the Hong Kong Basic Law (The practice of the ‘One Country,
Two systems’ policy, June 10, 2014, Foreword). The former stipulates the principles based on Article (31) of the 1982 PRC constitution and the latter is the product of the Sino-British Joint Declaration signed in 1984. 

Some actors have cited the "One country, two systems" constitutional principle as a loophole to dismiss the upcoming 'National Security Law for Hong Kong'. What these actors fail to understand is the interplay between principles of the ‘One Country Two Systems’ and Hong Kong Basic Law. The policy of ‘One country two systems’ policy and the Hong Kong Basic Law combined to afford the Hong Kong SAR greater autonomy in all matters of governing a state except for the areas of defence and foreign relations (Section 3(2) of the Sino-British Joint Declaration). It is stated that matters of defence and foreign relations of the Hong Kong SAR solely fall under the jurisdiction of the central government in Beijing. One would not be exaggerating in stating that the current situation of the HKSAR is currently in turmoil in as far as safety and foreign relations are concerned. 

The supreme and fundamental duty of any government is to deliver public goods to its citizens and that includes safety and security. In the very manner that all nations in the world have a right to make decisions in its sovereign territories, China also deserves that level of respect from the international community. It is within these premises that China ought not to fail its people in the delivery of this paramount public good.

Even if one were to make references to the Sino-British Joint Declaration which stipulates conditions of the handover of HKSAR to China, the Central Government in Beijing has a mandate to recommend relevant aspects of governing the region. The national security legislation for Hong Kong ought to be viewed within the light that it consists internal affairs falling under China’s sovereignty.

* Paul Tembe is Senior Researcher at the TMALIhabo Mbeki African Leadership Institute and Associate Professor at the Institute of African Studies Zhejiang Normal University Jinhua, China.

** The views expressed here are not necessarily those of IOL.

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