The Rollback of Autonomy, Human Rights and the Rule of Law in Hong Kong

The Rollback of Autonomy, Human Rights and the Rule of Law in Hong Kong

The world has watched in horror as Hong Kong is transformed from an open society with a liberal constitutional order into a repressive authoritarian regime.


Last year a new Beijing-imposed National Security Law (NSL) targeted freedom of expression with the widespread arrests of members of the political opposition. This year Beijing’s amendments to the Hong Kong Basic Law cut back on direct elections and impose electoral vetting for loyalty to exclude the opposition from the political process. With much of the opposition now in jail or exile, the city’s vibrant political debate is set to go silent.

This was not inevitable. When the Sino-British Joint Declaration returning Hong Kong to China was signed in 1984, there was optimism that Hong Kong could carry on as usual under China’s “one country, two systems” model. The agreement promised a “high degree of autonomy,” the rule of law, and basic rights protections, along with the introduction of democratic reforms.  

These commitments were all included in the 1990 Basic Law, which made such local self-rule explicit by promising the “ultimate aim” of “universal suffrage,” by directing those national laws, except for a limited number to be listed in Annex III of the Basic Law, not apply to Hong Kong and by directing that mainland departments not interfere in local affairs. 

With the government coopted by Beijing, the defence of Hong Kong’s autonomy was left to the courts and the street.

There were two fundamental flaws. First, the ultimate power in China’s National People’s Congress Standing Committee (NPCSC) to interpret the Basic Law would hang over the courts. Second, Beijing’s total control over the process of democratic reform would be used to defer the promised reform. Beijing would keep its most ardent supporters in power through a Beijing-friendly Election Committee to choose succeeding chief executives. Instead of democracy, a system that rewards loyalty to Beijing became entrenched.

Democratic reform faced more significant Beijing interference, leading to massive democracy protests in 2004 and again in the 2014 “umbrella movement.” After the massive demonstrations in 2014, Beijing merely offered a vetted election where its anointed supporters would nominate the candidates. With a minority of directly elected legislators, the pan-democratic opposition vetoed this proposal, where a two-thirds vote was required. Arrest and imprisonment of protest leaders followed. 

Without a fairly elected democratic government, Hong Kong could not defend the promised autonomy which is vital to maintaining the rule of law and basic freedoms. With the government coopted by Beijing, the defence of Hong Kong’s autonomy was left to the courts and the street. The courts could often be counted on to uphold the rule of law and secure basic freedoms, applying a purposeful human rights approach. Civil society would increasingly be called into action as a hedge against Beijing interference: in 2003 to resist the imposition of overreaching national security laws under Article 23 of the Basic Law, and in 2012 when the government sought to impose patriotic education. Both times the government backed down in the face of massive protests. 

In 2019, when the government proposed an extradition bill to render people arrested in Hong Kong to the mainland for trial on mainland charges, pent-up public anger exploded. While the extradition bill was ultimately withdrawn, the government ignored four other protest demands relating to police behaviour and democracy. Beijing ratcheted up its interference by directly imposing the NSL and the electoral changes.

The NSL ended the “one country, two systems” model in all but name, outlawing acts of secession, subversion, terrorism and collusion with foreign forces—with prison sentences of three years to life. Both a local committee and a mainland office for safeguarding national security have been set up in Hong Kong. The local committee, chaired by the chief executive, is under the central government’s direct control, with a mainland official as its “advisor.” Simultaneously, the office for safeguarding national security is staffed entirely by mainland public security officials. Both offices operate in secret, and neither is subject to judicial review. Special NSL branches of the local police and the justice department likewise operate in secret and can even conduct warrantless searches and surveillance. 

Nearly all prosecutions target freedom of expression. Forty-seven opposition politicians were rounded up and prosecuted under the NSL merely for conducting an opposition primary in which candidates expressed the hope they might use a victory to invoke a Basic Law provision to force the chief executive to resign. Several people in the media have been charged merely for criticizing the NSL. Nearly all opposition leaders are in jail or under prosecution, either under the NSL or pre-existing public order or sedition laws.

The author’s recent book, Making Hong Kong China: The Rollback of Human Rights and the Rule of Law(November 2020), is available from Columbia University Press.

The election law “reforms” clearly aim to finish the job of silencing opposition. The pre-existing Election Committee, previously used only to choose the chief executive, is now expanded from 1200 to 1500 members, chosen mainly by Beijing-friendly functional sectors or Beijing appointees in the national government.  The Election Committee now takes on the added duty of nominating all members of the legislative council. The legislative council, which was half directly elected, will now be expanded from 70 to 90 members, 40 of which will be selected by the Election Committee itself, with 30 by functional sectors and only 20 directly elected. A new Candidate, Eligibility Review Committee, is being established to vet every candidate for public office for loyalty to the communist government. The special NSL police unit will advise this review committee, subjecting every candidate for public office to a police investigation. Opposition candidates run at their peril.

Beijing and Hong Kong officials had justified their recent crackdown by claiming that no government would allow such massive protests as occurred in 2019 when up to 2 million protesters took to the streets. An aggressive police crackdown led to episodes of rock-throwing and property damage by a minority of protesters. But this claimed justification overlooks the causes of these protests. After over two decades of demanding compliance with the Basic Law commitments, with increasing central government encroachment on Hong Kong’s autonomy, it would seem demonstrators had reason to protest. 

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