Hong Kong, Beijing and the bending of the Basic Law

A NEW NATIONAL SECURITY REGIME

At the National People’s Congress (NPC) on May 22, Chinese officials announced the introduction of new national security legislation for Hong Kong. Within the draft legislation circulated among policymakers was so-called Article 3, a controversial proposal that would see the establishment of security agencies in Hong Kong under the direct control of Beijing. The legislation was passed by the NPC several days later, bypassing the Hong Kong Legislative Council (LegCo) altogether. According to Chinese state media, legislators agreed that this was a major step towards security long-term prosperity and stability for Hong Kong.

The announcement was met with protests by pro-democracy activists in Hong Kong, many of whom fear that the legislation is an attack on their rights and freedoms enshrined in the Basic Law. For activists, the legislation is a clear attempt by Beijing to enforce its will over Hong Kong under the guise of national security. Seeking to quell fears, Hong Kong Chief Executive Carrie Lam has stated that there is no cause for concern, asserting that the legislation is necessary for Hong Kong due to ongoing political unrest and would ultimately serve to uphold and preserve the city’s values.

The crisis is unfolding in the midst of increasing tensions between Washington and Beijing, fuelled by trade disputes and a blame game over the COVID-19 pandemic. US President Trump has said that Beijing’s actions in Hong Kong would be met with a strong response, while Secretary of State Mike Pompeo has condemned the legislation as a ‘death knell’ for Hong Kong’s freedom and advised Congress that the US should no longer consider the city autonomous from China.

RULE BY LAW

Article 3 is the latest manifestation of Beijing’s attempts to secure its hold over the city. Much like the Anti-Secession Law for Taiwan and the 2019 extradition bill for Hong Kong, these laws aim to establish the legal basis for Beijing’s direct political control over Chinese territorial claims and erode resistance by signalling its resolve to achieve that control.

For Beijing, these measures are necessary because of the influence Western powers have had in the city’s history and politics. In Beijing’s eyes, the city is an inalienable part of China, unjustly divorced from the mainland by the British during the ‘century of humiliation’. While the 1984 Sino-British Joint Declaration returned sovereignty to China from 1997 onwards, the Basic Law has been the foundation of Hong Kong’s governance and denied Beijing direct political control over the city until 2047. To gain control before then, Beijing must supersede both the Declaration and the Basic Law. These new laws could aid Beijing in achieving that control by suppressing pro-democracy activists and protesters that they see as dangerous, Western-influenced ‘secessionist’ movements. Bypassing the LegCo is a clear sign that Beijing no longer considers engagement with the post-1997 governance structures as a viable strategy.

The passage of the new national security laws has damaged Beijing’s soft power — particularly in Taiwan, which has closely observed Beijing’s treatment of Hong Kong. However, Beijing’s image in the West has already been dealt a blow by the COVID-19 pandemic and so it is likely that ‘strongman’ President Xi Jinping and the Chinese Communist Party view projecting greater strength as a necessarily precaution to address the threat that the city’s ongoing protests pose to its rule. Furthermore, this kind of legislation and the ensuing calls for Hong Kong independence could stoke the kind of nationalist sentiment that would distract from China’s post-pandemic economic slowdown.

‘DEATH KNELL’ FOR HONG KONG

Beijing will need to implement them in Hong Kong. However, the exact shape and extent of the laws are unclear, and many fear that they will be interpreted broadly to curb political freedoms.

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Should the new laws provide sweeping new powers for Beijing, a crackdown against the year-long protests using mainland security forces may follow. The threat of violence is plausible as Beijing’s recent actions, like the economic sanctions against Australian imports, appear to be more concerned with shoring up perceptions of strength than co-opting other states and their populations. The array of sophisticated surveillance technology available to China means that such a crackdown is likely to be highly effective. Alternatively, Beijing could direct its security agencies to play a greater role in Hong Kong’s day-to-day affairs without using overt force. In this case, any crackdown, possibly held close to Hong Kong’s scheduled elections in September, would be carried out by the Hong Kong police with aid from mainland security forces. This would attract less attention but could still have the same effect of suppressing protests.

The West’s response so far has taken the shape of diplomatic rebuffing and economic sanctions. Foreign ministers from Canada, Australia and the UK released a joint statement acknowledging the new laws as an erosion of Hong Kong’s autonomy. Whilst these criticisms are unlikely to deter Beijing, the revocation of Hong Kong’s special economic status and the imposition of sanctions could see a dramatic shift in foreign direct investment and change the character of Hong Kong’s dominant financial industry. Having long been an important financial hub linking Chinese firms to foreign capital, the revocation of the city’s special economic status could cripple its ability to fulfil this function. According to some commentators, this is all but a foregone conclusion, considering US legislation passed last year allows for the imposition of sanctions in response to contraventions of the Joint Declaration or Basic Law. However, the legislation provides room to manoeuvre and Washington may not want to use all its leverage at the outset by implementing harsh sanctions. The question is whether the US wants to try and influence Beijing’s future behaviour in Hong Kong, or simply try to punish the Communist Party largely at Hong Kong’s expense.

Hong Kong’s loss of political autonomy and economic suffering is likely to increase citizens’ anger towards China and, without any practical means of recourse except for mass protest, the future of the pro-democracy movement seems precarious. Media suppression on the mainland and Beijing’s consistent messaging that the Hong Kong protesters are ‘radicals’ spurred on by foreign powers means that the domestic sympathy required to curb the excesses of state violence will be all but non-existent.

Should mainland forces be unleashed in the city, protesters armed with their symbolic umbrellas will struggle to sustain their movement.