What’s so wrong with China defending Hong Kong and national security?

HONG KONG (SCMP) known to the world as a model free-market economy, as in Milton Friedman’s Free to Choose TV programme, or a city with a stunning skyline, as in Christopher Nolan’s The Dark Knight – has joined Tibet and Xinjiang as one of China’s human rights trouble spots.

Australia, a long-time trade and investment partner of Hong Kong, went out of its way before 1997 to enact a special statute to grant Hong Kong’s economic and trade office in Sydney immunities and privileges.

Yet, after China enacted a national security law for Hong Kong, Australia asked its nationals to reconsider remaining in the city. Australians were warned they could be “at increased risk of detention on vaguely defined national security grounds”.

Local officials are busy rejecting accusations by Western governments and politicians of human rights suppression. The national security law is decried as vague and “sweeping”, and legitimate law enforcement denigrated as a purge or persecution of democracy activists.

Yet Hong Kong is a latecomer in enacting national security legislation. It has much to learn from Australia, which enacted a flurry of laws in 2018 to enhance national security protection.

The Espionage and Foreign Interference Act empowers Australian authorities to suppress “inherently harmful information” or information that could “harm or prejudice relations between the Commonwealth and a state or territory”. The Foreign Influence Transparency Scheme Act 2018 puts a range of people and organisations at risk of committing a criminal offence.

Its Access and Assistance Act would allow the authorities to “add, copy, delete or alter” data after people have been ordered to hand over their phones and computers in defined circumstances. Tech companies would have to comply with similar requests about their customers’ encrypted data.

Hong Kong’s new national security legislation pales in comparison with Australia’s far more detailed and comprehensive legislation. Hong Kong’s Basic Law ensures the provisions of the International Covenant on Civil and Political Rights, commonly regarded as the gold standard of human rights protection, remain in force after 1997 and are implemented through Hong Kong’s Bill of Rights Ordinance.

By comparison, many electoral democracies only incorporated certain rights provisions in their constitutions or legislation passed by their parliaments.

Since 1991 and more so after 1997, Hong Kong courts have become accustomed to undertaking judicial reviews of executive decisions and local legislation where constitutional rights are engaged.

Our courts are in uncharted territory, balancing Hong Kong’s new constitutional reality with individual rights and liberties. They deserve credit for striking the right balance after controversial cases have worked their way to the highest level.

China has waited 23 years for Hong Kong to fulfil its constitutional obligation under Article 23 of the Basic Law to prohibit seven offences which endanger national security. Yet China has been attacked for both the substance of Hong Kong’s national security law as well as its different modus operandi of enactment – with lightning speed and shrouded in secrecy until ripe for enactment.

China’s political, legal and judicial systems are no doubt different from the common law system. A civil law system was introduced at the dawn of the first republic in 1911. The Western world’s animosity does not help its gradual and orderly convergence with international standards in terms of procedural transparency and rights protection.

But the fundamental question remains: does China not have the right to protect itself, and a vital part of its territory, even though its systems are different? Does China not have a constitutional role to play in enacting legislation to restore order and stability in its first special administrative region?

Let those populists and political opportunists venting daily diatribes about China’s alleged erosion of Hong Kong’s autonomy be reminded that 1997 is a sovereignty project. The Sino-British Joint Declaration is about the transfer of sovereignty.

The first two paragraphs are a pair of linked statements by two sovereign powers – China declaring its decision to establish a Hong Kong Special Administrative Region “upon resuming the exercise of sovereignty over Hong Kong”, and the United Kingdom declaring that it will restore Hong Kong to China with effect from 1 July 1997.

In Paragraph 3, China spells out its 12 basic policies towards Hong Kong, to be elaborated in legislation enacted by its National People’s Congress. Article 12 of the Basic Law confirms the policy enunciated by China in the Joint Declaration that the Hong Kong Special Administrative Region “shall be a local administrative region” of China with “a high degree of autonomy and come directly under the Central People’s Government”.

To commemorate the 30th anniversary of the promulgation of the Basic Law, senior Beijing officials recently took part in a summit seminar in Hong Kong to reiterate the constitutional principles under which Hong Kong is governed.

Hong Kong does not have self-rule or reserved powers as in a federal system. All of its powers are authorised by the central government. Hong Kong people were reminded that only true patriots – people who genuinely support reunification and are loyal to China – can take part in the governance of Hong Kong. That includes the executive and legislative branches, and the judiciary.

Given that China is already facing a deluge of remonstrations over what the West perceives to be violations of Hong Kong’s autonomy and rights suppression, what is wrong with China sticking to its guns in asserting its sovereignty over Hong Kong? - SCMP