By Thomas E. Kellogg
It was dramatic political theatre. Just hours after a decision by the Standing Committee of China’s National People’s Congress led to the expulsion of four prominent pan-democratic lawmakers, Hong Kong’s remaining 15 pan-dems resigned their seats in protest. Newspapers around the world carried photos of the 19 newly-unemployed lawmakers facing a phalanx of microphones, hands clasped in solidarity.
From Beijing’s perspective, the day was a complete political success: its decision signalled the end of Hong Kong’s Legislative Council as one of the last high-profile platforms for pro-democratic advocacy. The central government also sent a clear signal to future legislators: they too could be dealt with equally harshly for their own national security transgressions, however broadly defined.
And of course, with the opposition gone, the Hong Kong government and pro-Beijing legislators now have a free hand to enact legislation that will further advance Beijing’s agenda. Items high on its wish list – such as voting rights for Hongkongers living in mainland China, or reforms to the education curriculum to strengthen so-called “patriotic education” – can now be passed by LegCo virtually anytime.
The focus on the political impact of the expulsions and resignations meant less attention was given to the legal nuances of the Standing Committee of the National People’s Congress (NPCSC) decision. A closer look reveals some very disturbing innovations: the Standing Committee broke new legal ground, in ways that further damage Hong Kong’s autonomy under the Basic Law. Unless Beijing decides to change course, the decision will have far-reaching legal effects that will reverberate for years to come.
Perhaps what’s most troubling about the NPCSC decision is its listing of the various laws and other normative documents that form the legal basis for its aggressive move. The decision grounds the NPCSC’s authority to act not just in the Basic Law, but also in three provisions of China’s constitution, and the recently-passed National Security Law itself, among other documents. The NPCSC’s reliance on each of these would-be pillars is deeply problematic, and the meaning behind its reference to them deserves closer scrutiny.
Let’s look at each of these sources of authority, one by one.
PRC Constitution: when taking action on Hong Kong, Beijing should restrict itself to the powers enumerated in the Basic Law (it is, in essence, Beijing’s autonomy agreement with the people of Hong Kong, which lays out who gets to do what.) And yet, the decision cited specific articles of the People’s Republic of China constitution as a key basis for its decision. In particular, the NPCSC relied on Articles 52, 54, and 67(1) of the People’s Republic of China (PRC) constitution, which cover national unity, national security, and the NPCSC’s constitutional interpretation authority, respectively. The reference to Articles 52 and 54 marked the first time since the 1997 handover that Beijing had cited any specific PRC constitutional provisions – aside from Article 67, which had been cited previously – in its pronouncements on Hong Kong law.
The decision to cite these two constitutional provisions is, legally speaking, a big deal. The NPCSC’s reliance on Articles 52 and 54 suggests that Beijing is moving forward with the creation of a separate legal authority to act in and on Hong Kong, above and beyond its (already significant) powers under the Basic Law itself.
In so doing, Beijing frees itself from any limitations whatsoever on its power to intervene in Hong Kong affairs. One can argue over what powers Beijing does or doesn’t have under the Basic Law, but if the field of play switches to the PRC constitution, there’s no way that Hong Kong political institutions – or anyone else for that matter – can even start a discussion on limits to Beijing’s authority.
There are other self-interested reasons for the Standing Committee to act under its supposed state constitutional authority. Doing so signals that Beijing regards the expulsion of the four LegCo members as a serious matter, one that has national-level constitutional implications. In other words, in addition to expanding its legal authority, Beijing is also making a political statement, one that underscores the party leadership’s determination to stamp out what it claims are significant national security threats in Hong Kong, and its resolve to use all of the legal tools at its disposal to do so.
The decision’s reference to Article 54 further reinforces the gravity of the matter. This refers to the duty of all PRC citizens to “safeguard the security, honour and interests of the motherland.” Its inclusion as one of the key sources of the decision suggests that the actions of the four expelled legislators are – in Beijing’s eyes at least – a threat to national-level security and not merely to political security in Hong Kong.
Finally, the reference to the PRC constitution also has a more mundane legal impact: it puts the decision beyond the reach of the Hong Kong judiciary, which in any case would have been wary of crossing Beijing on such a high-profile matter.
The Basic Law: troublingly, the NPCSC decision does not refer to any specific provision of the Basic Law. Prior decisions – including the 2016 Interpretation referenced in the decision text – regularly made reference to Beijing’s Basic Law Article 158 authority, or to other specific provisions that empowered it to take action. The fact that such a specific reference is absent here suggests that Beijing is moving away from any arguments about limits on its Basic Law authority, and toward a more broad-based and freestanding view of its own power under the Basic Law, untethered to any specific Basic Law provision.
It’s worth noting that the expansive content of the NPCSC decision could not really be viewed as an interpretation in the normal, common law sense of the term, which – under more ideal circumstances, in which the limits on Beijing’s Basic Law authority were more rigorously policed – would mean that the decision itself is beyond the ambit of Beijing’s Article 158 authority. In other words, if Beijing were institutionally compelled to follow core Basic Law rules, the decision would be viewed as constitutionally out of bounds and therefore null and void.
The National Security Law: here the NPCSC is using the NSL as a broad-based grant of authority to take action it deems necessary to safeguard national security in Hong Kong, rather than as a criminal statute that can be used to punish specific people for specific acts after July 1, 2020. As many in the pan-democratic camp have pointed out, the use of the law in this way raises real concerns about retroactivity, given that the actions of the four expelled LegCo members took place before the legislation went into effect.
Crucially, Article 35 of the NSL – which covers eligibility to serve in political office in Hong Kong for those convicted of crimes under the NSL – refers specifically to a criminal conviction, which of course has not been rendered in the case of the four disqualified LegCo members. If the NSL can be used to punish Hongkongers for alleged and unproven violations of national security, even outside the context of a criminal trial and conviction, then its ambit is even broader than even its critics realised, and the damage to rule of law in Hong Kong is that much greater.
Without doubt, November 11 was a dark day for democratic development in Hong Kong. For the first time in nearly a quarter-century, Hong Kong’s legislature lacks any political opposition whatsoever. It can no longer act as a meaningful institutional check on the government’s authority, or even as a platform for debate on the future of the SAR. And it’s unclear if or how pan-democratic politicians will be able to take part in LegCo after elections in September 2021. Many in Hong Kong fear that the NPCSC decision – and also the security law – could be used to further curtail their authority if indeed they are allowed to retake their seats.
Still, it’s possible that the political ramifications of the NPCSC decision will pale in comparison to its wide-ranging legal effects. Beijing, never a fan of constitutional restraints on power, may well have decided to finally rid itself of even the weak constraints imposed by the Basic Law, using the decision as a means to make a clean break. It may be that, 23 years after the handover, we are finally seeing Beijing unbound in Hong Kong.
Thomas E. Kellogg is the executive director of the Georgetown Center for Asian Law, and also an adjunct professor at Georgetown University Law Center.
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