Western leaders have been quick to denounce Beijing’s national security law for Hong Kong. Too quick, actually

With the law’s text not yet revealed, Western leaders have jumped the gun and concluded that it will be oppressive and destroy the Sino-British Joint Declaration. Are Hong Kong and its people pawns in a greater geopolitical agenda?

Henry Litton

Published: 8:15am, 15 Jun, 2020

Why you can trust SCMP

Immediately after the draft proposal on Hong Kong’s national security legislation was announced by the National People’s Congress Standing Committee on May 22, and before the NPC itself had considered the matter, Chris Patten, former governor of Hong Kong, made a statement.

Hong Kong’s autonomy was “guaranteed” under the “one country, two systems” principle, he said, and “enshrined” in the 1984 Sino-British Joint Declaration. And, he added, “What we are seeing is a new China dictatorship. The British government should make it clear that what we are seeing is a complete destruction of the joint declaration.”

Lord Patten sees the “one country, two systems” formula as the product of bargaining between Britain and China. The truth is otherwise. As is clear from the joint declaration, the creation of a special administrative region for Hong Kong after the resumption of sovereignty on July 1, 1997 was decided at the outset, with one country, two systems as a basic guiding principle. This took into account “Hong Kong’s history and realities” as stated in the joint declaration.

One of the “realities” is plainly this: Hong Kong as an entity was not viable without the New Territories, and its inhabitants could not live without the mainland’s active daily support – taking the supply of drinking water for a start.

In 1996, Patten, as a representative of the queen, exercised dominion over Hong Kong. At that time, Hong Kong’s national security laws were in a ramshackle state. To improve on those laws, his administration introduced into the Legislative Council the Crimes (Amendment) (No. 2) Bill, dealing principally with the crimes of “subversion” and “secession”.

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That law never came to fruition. Nor did an attempt by the SAR government to pass the National Security (Legislative Provisions) Ordinance in 2003. Hence, the shoddy colonial laws protecting national security remained on the statute book.

More than two decades then elapsed, leaving Hong Kong in breach of the provisions of Article 23 of the Basic Law, which required it to enact effective laws to deal with the whole range of acts endangering national security. This should have been done by Hong Kong soon after the handover in July 1997.

Then came the unrest in Hong Kong, commencing in early June last year. It became increasingly violent as time went on, damaging the lives of countless people. At a time when the legislature should have been acting firmly and decisively to curb the violence, it became dysfunctional. It was incapable of acting effectively as a legislature. There was more than a suspicion that foreign elements were at work, fanning the flames of unrest in Hong Kong.

In these circumstances, the NPC, exercising sovereign powers over the region, passed resolutions on May 28 to enact national security laws for Hong Kong, leaving it to the Standing Committee to work out the text of the legislation.

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Lord Patten, even before the resolutions were passed, jumped to the conclusion that the laws would be oppressive, against the interests of Hong Kong and its people, and said they constituted “destruction of the joint declaration”. And so did many other national leaders from the Western world.

Might this not turn out to be a great embarrassment for all those leaders, when the text of the laws is revealed?

To start with, whatever shape the legislation takes, enforcement lies in the hands of the Hong Kong courts, exercising jurisdiction under the common law system. A prosecution for a national security offence under the new law, if that materialised, would then be a true test of the one country, two systems formula. Not before.

As things stand today, it is, at best, pure speculation as to how it might all work out. Some might even say that it is more than speculation: it is applied prejudice, or mischief-making.

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Why do all these leaders from overseas think that the laws being crafted in Beijing could or would be used to oppress the people of Hong Kong?

Take, for instance, the crime of “subversion”, which Patten’s administration tried to deal with in the 1996 bill. Let us say that, in the new legislation, “subversion” is left amorphous, ill-defined. Some would immediately jump up and say: “You see how oppressive it is? This law would put in jail the kid who does nothing more than carry a placard in the street bearing words that Beijing dislikes.”

But this is not how a common law court would enforce such law. Common law principles would not allow it.

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The dictionary meaning of “subversion” is the undermining of the power and authority of an established system or institution. In the context of national security, it would be the undermining of government.

This is plainly a most serious crime: not something like a parking offence, where proof of the act is enough to result in conviction, the intention, the reason for parking in the wrong place, being irrelevant.

But, to convict a person of subversion, the prosecution must prove two things beyond reasonable doubt: one, the act constituting subversion, and; two, the intention accompanying the act.

So, as regards the act constituting “subversion”, the court would take judicial notice of the fact that the government is a legally constituted institution with all the lawful forces behind it. As a matter of pure common sense, it would take more than mere words to shake the foundations of such an institution.

In the instance of the kid in the street with his placard, bearing words like “ Revolution of our times”, no court in Hong Kong would construe those words by themselves as having an effect of undermining the government; furthermore, no court would attribute to that kid the necessary intent: far more likely he is simply confused or misled or yielding to peer pressure.

As things stand today, the reaction of the Western leaders is so premature, disproportionate and, in the circumstances, so irrational, that it leads one to wonder if there is some other agenda at work. Is all this happening in the context of a much bigger plan? Is a geopolitical chess game being played, with Hong Kong and its people being used as pawns?

Henry Litton is a retired Court of Final Appeal judge and author of Is the Hong Kong Judiciary Sleepwalking to 2047?

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