This has been a tough week for Hong Kong. The drama will only conclude tonight, while most of the city’s residents are asleep, when US President Donald Trump announces what he plans to do about Beijing’s imminent imposition of national-security legislation in the Special Administrative Region.
Putting aside the irony that China’s leadership is about to be judged by someone who cannot accept fact-check warnings on his tweets, it needs to be noted that the situation here is not as grim as many media commentators have been claiming. Foreign businesses have good reason to worry about how they will be affected by national-security legislation, but, as AmCham president Tara Joseph has pointed out, details of the impending legislation still need to be seen before a judgment can be made. It seems safe to assume that people like “Long Hair” and, possibly, Joshua Wong, will soon be skipping town, but there is a broad cross-section of society that would do well to follow Joseph’s wait-and-see approach.
Admittedly, reassurances dished out by various public figures, including the Chief Executive, Carrie Lam, are worth little. Not when law-enforcement agencies have such a poor record of restraint. Perceptions of overzealous enforcers run amok have been strongly reinforced this week, as hundreds of kids were arrested in peaceful protests, while the first trials of people on charges of rioting were brought to court, including minors. It’s not that police and prosecutors have been doing anything illegal; it’s just that the zero-tolerance approach and utter lack of compassion on display sends a strong signal of what to expect from Ministry of State Security (MSS) agents once they are operating in Hong Kong.
Nevertheless, before the death knell can be sounded on “One Country, Two Systems”, two things need to happen. The first is that a judge be forced to reach a judgment in a case based on a consideration of anything but the facts presented and the applicable laws. The second is that a law-enforcement agency – including those from the mainland – be allowed to act above or beyond the laws of Hong Kong.
In the first instance, we have had a few close shaves. The National People’s Congress Standing Committee has rattled sabers, but it hasn’t yet acted outside the bounds of its constitutionally defined role in Hong Kong affairs. Individual judges have shown some remarkably poor judgment, displaying political bias at times, but the system remains intact. This looks likely to remain so: commentators such as the US Secretary of State might not like the NPC passing a resolution to add legislation under Annex III to the Basic Law, rather than simply waiting for Hong Kong’s Legco to enact it under Article 23, but it is within the NPC’s legal right to do so. Either way, Hong Kong was always going to get laws covering national security that satisfied Beijing. More importantly, once passed, no one will be asking Hong Kong judges to act according to anything but the Basic Law. This might sound like a legalistic argument, but it is no less true.
In the second instance, it remains to be seen if MSS agents will be sufficiently constrained by the new legislation once it is passed. Regrettably, the omens do not look good. People have previously been taken from Hong Kong by men who appeared to be MSS agents; there is no other reasonable way to explain what happened to Xiao Jianhua at the Four Seasons Hotel back in February 2017. Can the MSS now be expected to follow the same laws that bind the Hong Kong Police’s Security Bureau?
It doesn’t reassure that the new laws will be so broadly defined, to cover not only acts of sedition, secession, and terrorism, but also “activities that seriously endanger national security”. Like their American counterparts at the FBI and NSA – but not the CIA, which puts detainees into camps at Guantanamo Bay – Chinese agents in Hong Kong will probably have remarkably wide parameters to target suspects.
However, to be fair, it will still be up to a judge to convict them. It is reassuring to see that even pro-establishment heavyweights have scotched suggestions that foreign-national judges might not be able to sit at these trials. As long as they are conducted according to clearly established rules of evidence and presentation, the rule of law should hold, even in national-security cases. Especially in them.
Time will tell whether national-security legislation will erode Hong Kong’s freedoms and high degree of autonomy as envisaged under the Basic Law. It might look like the city is on a legal slippery slope. And it is disheartening to see how callously the police and prosecutors are behaving. But this is not yet “just another Chinese city”. We can only hope – and watch to make sure – it stays that way.