Kingdom, United – The announcement that about three million Hong Kong residents may have a pathway for British citizenship has caught nearly everyone off guard. “This would amount to one of the biggest changes to our visa system in history,” Boris Johnson wrote.
MB September 2020 Special Report | Understanding Hong Kong – A to Z
The measure is, in all respects, the United Kingdom’s response to the enactment of the national security law and potentially opens a pathway to UK citizenship to almost half of the inhabitants of HKSAR. The response also included the suspension of the extradition agreement and a halt to arms exports to Hong Kong. The last colonial governor of Hong Kong, Christ Patten, went as far as proclaiming that the law signalled “the end” of “One Country, Two Systems”.
This kind of “emergency exit” includes the so-called British Nationals Overseas passports to people who were Hong Kong residents before the 1997 handover. The British government says around 350,000 people currently hold such document and over 2.5 million people who lived in Hong Kong before 1997 are also eligible to apply for it.
Holders of BN(O) passports would have the right to remain in the UK for five years, after which they can apply for settled status – which, in practice, translates into permanent resident status. After 12 months of settled status, they can apply for citizenship. “There will be no quotas on numbers,” UK Foreign Secretary Raab said.
The Chinese reaction was up-front.
“China urges the UK to give up the fantasy of continuing its colonial influence in Hong Kong and to immediately correct its mistakes,” said Wang Wenbin, a spokesman for China’s Ministry of Foreign Affairs. In the same vein, China’s ambassador to London, Liu Xiaoming, accused the United Kingdom of “Blatantly interfering in China’s internal affairs and violating international law and the basic rules governing international relations.” A few days later, the ambassador said China might not recognise the BN(O) passport as a legal travel document, but at this moment the practical implications of that warning were not clear.
Lam, Carrie – When Carrie Lam took office as Hong Kong Chief Executive in July 2017, she was met with high hopes, translated in the popular support the new head of government had, according to surveys. In the early days of her tenure, she enjoyed a support rating of 63.6 per cent, as shown in a poll carried out under the Public Opinion Programme of the University of Hong Kong (HKUPOP). Her ratings were already below 50 per cent in late 2018, but her popularity truly took a dip to 30 per cent in June 2019, when the large scale anti-extradition bill protests erupted, sinking Hong Kong into the biggest political crisis since the handover. It went as low as 20 per cent in October 2019, another pollster indicated.
Back then, there were calls on the streets for her resignation, something that Beijing always ruled out. After all, it seems that she is not going to meet the same fate as that of the first Chief Executive, Tung Chee-hwa, who stepped down twenty months after the July 2003 anti-Article 23 bill protests.
What if it were up to her to decide? Would she have resigned in the aftermath of last year’s protests? An audio recording of a talk Lam gave to a group of businesspeople in August 2019 unveiled by Reuters shed light into it. “If I have a choice, the first thing is to quit, having made a deep apology, is to step down,” Lam said, while highlighting that the whole crisis had been elevated to a national sovereignty and national security level.
In June 2020, shortly after the Central Government announced that it would enact a national security law for Hong Kong, an article published by American magazine Atlantic had an eye-catching headline, “The Leader Who Killed Her City.”
The article, which says a lot about how Carrie Lam is seen in the West, is based on two assumptions: “Lam is already the most unpopular and calamitous leader in Hong Kong’s modern history, her decisions and failures of governance having borne consequences that are global in reach.”
While according to post-1990s opinion polls the first assumption holds water, the second (“the most calamitous leader in Hong Kong’s modern history”), a rather dramatic one, requires time to be further examined.
After the way she managed the extradition bill crisis, one could predict Lam would be a one-term Chief Executive. However, recent developments bring the overall political situation into unchartered waters, and as such, it could be premature to rule out a scenario whereby the incumbent leader seeks a second term in the 2022 elections.
That is, if the extradition bill was a nightmare for the Chief Executive, the national security bill seems to be the palliative for her ills. It is no coincidence that she describes the new law as “the most significant development” since the city’s handover to China. She believes that law will end chaos in the streets, creating a “stable and peaceful environment to be able to live and work here happily.”
While her administration was to a great extent cut out of the process of creating the new law, Carrie Lam does not seem – at least publicly – to be slightly offended by the fact. On the contrary, she has not tired of showing the possible merits. “Over time, confidence will be greater,” in the future of the territory.
When she took office in 2017, Lam said, “I want Hong Kong people to be happy and possess hope,” recognizing, at that time, that “the city had accumulated a lot of frustration.”
Three years and two months into her term, this is surely not the outcome she would have anticipated. Hong Kong has been dragged into a crisis, which carries obvious geopolitical implications, as US-China tensions keep on rising. And Carrie Lam is feeling the pinch, not only politically, but also personally.
Alongside ten other Chinese officials, she was a target of sanctions by the US government on allegations of curtailing the freedoms of Hong Kong residents, following the implementation of national security law.
“Of course it will have a little bit of inconvenience here and there, because we have to use some financial services and we don’t know whether that will relate back to an agency that has some American business — and the use of credit cards is sort of hampered,” she told CGTN in an interview in August right after sanctions took effect.
Macau – Comparing China’s two special administrative regions has always been an exercise akin to telling a “tale of two cities”, which depite sharing basically the same constitutional arrangement are very different historically, politically, socially and economically. The deep-rooted patriot sentiment that Macau citizens have shows a strong adherence to national sovereignty.
This was reflected in the speech Xi Jinping delivered last December 20, while presiding over the oath taking ceremony of Macau’s new top officials.
The President stressed that Macau citizens have a tradition of patriotism, as well as a strong sense of national identity, belonging, and national pride, firmly consolidating the social and political foundation of the “One Country, Two Systems” principle, and he highlighted Macau’s “unique role” in the practice of such principle.
The SAR has ensured that the central authorities exercise overall jurisdiction, while accurately implementing the highest degree of autonomy, he added.
Xi went as far as referring to “One Country, Two Systems with Macau Characteristics”.
The contrast in the approach of the two SARs to the implementation of Article 23 of the Basic Laws is a case in point.
Contrary to Hong Kong, where the national security law was imposed by the Central Government, Macau enacted laws on its own “to prohibit any act of treason, secession, sedition, and subversion against the Central People’s Government”, including other crimes, as stated in the related Basic Law article. And that was done in 2009, in a way that deserved kudos for the law’s balance and consideration. It was approved by the local Legislative Assembly, but it has never been used to prosecute anyone ever since then.
The need to improve Macau’s national security legislation was floated as early as 2018, when the Government established a new national security committee (Comissão de Defesa da Segurança do Estado), headed by the Chief Executive. During the Policy Address debate held in late April, Secretary for Security Wong Sio Chak said that an office for the committee would be established as soon as possible.
This means that steps were already being taken by Macau to strengthen its national security regulations and bodies. Now that the Hong Kong law has come into effect, the looming question is whether or not the Macau law will be amended to be brought closer to the much tighter legislation adopted by the neighbouring SAR.
This came following the remarks made by former Chief Executive and current vice president of the Chinese People’s Political Consultative Conference, Edmund Ho, and the director of the Political Studies Office of the Chinese Foreign Affairs Commission in the SAR, who made the case for a need to improve the city’s national security legislation.
When in mid-July he was asked if Macau is to follow in Hong Kong’s footsteps, Secretary for Administration and Justice André Cheong said that it’s up to Beijing to decide whether there should be a mainland-run national security agency like the one created in Hong Kong as a result of the new law.
More recently, Chief Executive Ho Iat Seng sought to ease concerns just before his departure for an official visit to Beijing in August by indicating that, even though there’s room for “improvement” with regards to the Macau law, any revision would not simply follow the national security legislation recently enforced in Hong Kong.
The same idea has been expressed by other community leaders, such as executive councilor Leonel Alves and former lawmaker Kwan Tsui Hang. Also, non-establishment legislator Pereira Coutinho argued that “common sense will prevail. Adopting this law for a different reality is unlikely, and there is no need [for it].”
Even without making any changes to the legislation, the Macau Cultural Affairs Bureau decided to remove a book by Hong Kong activist Joshua Wong from the Seac Pai Van public library “to analyze it”.
National Security Law– Can a law change the history of a country or region? In the case of Hong Kong, the answer can only be given a few years from now, but this law has unique characteristics. It led to a never seen before aggressive rebuttal from Washington and London. Other countries, 25 in total,— including France, Germany, Australia, and Japan — “issued a rare oral rebuke of China” at the UN Human Rights Council in Geneva, expressing “deep and growing concerns” over the new law.
On the other hand, 53 countries, mostly from Asia, Africa, and some Latin American ones, have voiced their support to Beijing’s move.
One should take into account that this is happening against the backdrop of a heightened rivalry and growing tensions between United States and China, which followed the trade war launched by Washington against Beijing.
From a constitutional law perspective, the matter sparked a heated debate. This is a law described by some experts as “unconstitutional”, as it was imposed directly by the National People’s Congress Standing Committee, bypassing the local legislative body – something that, critics point out, contradicts what is mentioned in Article 23 of the Basic Law, which says that the SAR should legislate the matters “on its own”. Those who decry Beijing’s move stress that it was “written and passed behind closed doors”, leaving Hong Kong citizens out in the dark during the law-making process. This is rejected by Shen Chunyao, director of the Legislative Affairs Commission of the National People’s Congress (NPC) Standing Committee: “Opinions were solicited from all relevant sectors, in particular, those from the HKSAR, during the formulation of the law”, Shen stated.
Right after the content of the law was announced and enacted, the Hong Kong Bar Association said it was gravely concerned about the contents and the manner in which the law was introduced. The lawyers’ association said that the provisions in the law “operate to erode the high degree of autonomy [of Hong Kong] … [and to] undermine core pillars of the One Country Two Systems model, including independent judicial power, the enjoyment of fundamental rights and liberties”.
The central and local governments as well as other experts hold a very different view of the matter. First, they point out that the Hong Kong SAR had 23 years to fulfil this obligation under the Basic Law, but failed to do so, keeping a legal loophole that had to be closed. They also argue that, given the circumstances, it was unlikely that it would happen in the foreseeable future, and quote last year’s protests – at times very violent – which included vandalism, acts against national symbols, transportation blockades in the city’s highways, subway and airport and some groups calling for Hong Kong independence and for foreign intervention, including US sanctions on Hong Kong and China. James C. Hsiung, Professor of International Law at New York University, argues that “the law’s enactment is constitutional and consistent with a well-established tradition” of unitary states, as is the case for China. In addition, rather than undermining the “One Country Two Systems” principle, the enactment of the law provides a protection to the cornerstone policy, argues Grenville Cross, former director of Public Prosecutions in Hong Kong. “If ‘one country, two systems’ was to survive, it would require comprehensive protection from those who were hell-bent on destroying it”, he wrote in an Op-Ed published by China Daily.
It is true that this law was discussed in Hong Kong for many years. But why now? And what is its relationship with the challenge to the extradition bill? “I think the idea of the law is to impose fear on the minds of the Hong Kong people”, said Hong Kong-based commentator Éric Sautedé. It is noteworthy to highlight that demonstrations against the law have only drawn hundreds, and that many citizens have reportedly deleted what they believe is “sensitive content” on the Internet.
Meanwhile, the Liaison Office in Hong Kong said the primary vote held by the opposition, which drew some 600 thousand voters according to organizers, could be in breach of the national security law.
Chief Executive Carrie Lam reiterated that the law will target “an extremely small minority of illegal and criminal acts”, and that the “basic rights and freedoms of the overwhelming majority of citizens will be protected.”
Were these words enough to reassure the Hong Kong citizens who are highly sceptical of the new law? This, like many other questions, will need more time to be answered.
One country, two systems – The introduction of the national security law left sequels in many areas, and one of them is the legal field.
The One Country Two Systems (OCTS) principle takes centre stage. Will the OCTS be weakened or upheld under the new law? It all depends on one’s perspective.
There are a number of voices inside and outside Hong Kong, who argue that this law, due to the content and the way it was created, calls into question the principle created by Deng Xiaoping, which served as constitutional arrangement for the retrocession of Hong Kong and led to the signature of the Sino-British Joint Declaration.
Critics accuse Beijing of ignoring the rules set out by Deng under the “One Country, Two Systems” in drawing up its own national security legislation for Hong Kong.
However, Carrie Lam quoted Deng to back the decision to enact the law. “The central government doesn’t have to interfere in the city’s internal affairs. However, will incidents undermining the country’s basic interests happen in the SAR? Should Beijing intervene if it happens? If the central government gives up all the authority, there might be chaos,” said Deng as cited by Lam.
Those who decry Beijing’s move argue that under the new law, it is the first time Beijing has made clear that mainland authorities will have jurisdiction over certain “complex” national security cases, allowing, at the same time, a mainland security agency to operate publicly in Hong Kong.
Opinions like that of Professor Martin Flaherty, Leitner Center of International Law and Justice, Fordham Law School, arguing that “given the PRC’s track record under Xi Jinping, it is hard to see how the national security bill is anything other than the death knell of ‘One Country, Two Systems’” have been widely spread. In the same thread, the Trump Administration invoked this argument for signing the decree that ends the special economic and commercial status that the US granted Hong Kong. The move came amid ever-growing tensions between Washington and Beijing and a hardline approach on China pursued by the US.
Other voices argue the opposite, stressing that that the national security law is absolutely necessary to ensure that One Country Two Systems will be upheld. Protecting national security and sovereignty is seen as a pre-requisite for the two systems formula. “One country, two systems is our national policy. No one knows better than us how to cherish it, and no one understands the truth of it better than us”, stated Zhang Xiaoming, deputy director of the Hong Kong and Macao Affairs Office.
In fact, it all depends on how one interprets the meaning of this principle.
The Basic Law’s preamble states “in accordance with the provisions of Article 31 of the Constitution of the People’s Republic of China, and that under the principle of “One Country, Two Systems,” the socialist system and policies will not be practiced in Hong Kong.” In the Sino-British Joint Declaration, Beijing pledged that the pre-handover social and economic systems would “remain unchanged” and so will the life-style. Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement” among others were ensured by law.
2014, as the Occupy movement was gaining steam, was a turning point in the political discourse on how to address the “high degree of autonomy.” The Central Government issued the White Paper on “The Practice of the ‘One Country, Two Systems’ policy in the Hong Kong Special Administrative Region,” in which the city’s autonomy is framed as being under the key concept of “overall jurisdiction.” The 2019 anti-extradition protests partially morphed into an anti-Beijing movement with some groups openly challenging China’s sovereignty, something deemed unacceptable by many Hong Kong citizens and by the Central Government.
Fast forward to 2020 and we are before another watershed. This one being seen as akin to a “second handover,” with the enactment of the national security law.
What do Hong Kong citizens think of all this? It’s hard to truly gauge the public sentiment in an accurate way these days. A survey carried out by the Hong Kong Public Opinion Research Institute in mid-June (before the content of the law was unveiled) indicated that 57 percent of the respondents were against the bill. The same pollster, which is criticized by the pro-Beijing camp as being biased, had revealed a study in February where only 27 percent of the residents showed confidence in “One Country, Two Systems”.
On the other hand, a pro-Beijing group announced that almost 2.93 million Hong Kong residents have signed a petition in support of the national security legislation.
Hong Kong-based author says there is a “silent majority” supporting the national security law as it “ended the violence and destruction to the city and brought back peace to the law abiding citizens”.
Regina Ip, an influential pro-Beijing legislator and executive councilor, stresses that “the past few decades, many have predicted that our separate lifestyle, separate systems will cease to exist. But (…) Hong Kong continued to be prosperous and successful, despite some short-term setbacks. So, I believe that, in spite of some short-term worries about this new legislation, with the nation’s backing for Hong Kong, we will be able to bounce back economically, socially, and internationally.”
She concludes “The death of ‘One Country, Two Systems’ has become a cliché.”