Opponents of the security legislation for Hong Kong say this is a threat to “One Country, Two Systems”. I disagree with them. National security legislation is within the power of the central government and is its obligation, and not within the limits of the SAR’s autonomy. First of all, Hong Kong is a legal and constitutional component of the People’s Republic of China. Although it is as stated a special administrative region, whereby given autonomies are promised to the city, it is not an independent territory and it does not, contrary to Western belief, exist exclusive or contrary to China’s legal and constitutional structure. Instead, what is known as the Basic Law, which is Hong Kong’s “mini-constitution” and legal arrangement, is in fact under the jurisdiction of China’s NPC, which is the legislative body of the People’s Republic of China and has a constitutional position in overseeing the laws of the country as a whole, even if via its committees.
Hong Kong’s Basic Law is a component of this. Although the document mandates that Hong Kong has autonomous right of policymaking in areas in which it specifies that the central government does not need to account for, the Standing Committee of the National People’s Congress (NPCSC) holds a right of interpretation over it as specified in Article 158. Next, the Basic Law also sets out in Article 18 that the NPCSC holds the right to impose laws on the HKSAR related to “defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law”. It is able to do so by placing them in Annex III. These aspects, which include the provision of national security, are not autonomous.
Next, Article 23 of the Basic Law mandates that “The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region.” Although this is supposed to be done by the Hong Kong administration, it has not materialized because of local opposition. However, Article 18 further stipulates that if there is an event of “turmoil within the Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the Region”, the NPCSC also has the power to implement laws in the region. And what is happening now? The city is in a constant state of unrest. Although the West points to local grievances, nevertheless the state of sporadic violence, collaboration with US politicians by some, and severe disorder have led the National People’s Congress to utilize their legitimate constitutional role over Hong Kong, via Article 18, to implement a national security law on the region’s behalf. In doing so, the “one country, two systems” principle is not being violated because the field of national security does not come in the jurisdiction of the local government, or even contrary to the principles of the Basic Law itself. Instead, the West makes a flawed argument that argues against these constitutional provisions and pushes the logic that Beijing is not a legitimate, or for that matter equal, partner in Hong Kong and does not have a say over its future.