Can HK return to the situation before the national security law?

Frank Ching December 17, 2020 08:33

In the almost six months since China imposed a national security law on Hong Kong, the relationship between the special administrative region and Britain, its former colonial master, has deteriorated greatly, with the UK accusing China of breaching the Sino-British Joint Declaration under which Hong Kong is meant to enjoy a high degree of autonomy for 50 years. Since then, accusations have been flying back and forth between Beijing and Hong Kong on one side and London on the other.

In fact, British Foreign Secretary Dominic Raab went so far as to suggest in late November that the UK might withdraw its judges serving on Hong Kong’s court of final appeal, a move that will greatly weaken the Hong Kong judiciary, contradicting the British claim of wanting to help Hong Kong against an oppressive China.

This position has now been clarified by the top British diplomat in Hong Kong, Consul General Andrew Heyn, in an interview he gave days before departing at the end of a four-year tenure.

Consul Heyn, in an interview with broadcaster RTHK earlier this month, recalled that the first two and a half years of his tour was “the boom period for the UK and Hong Kong” where everything – people-to-people, business-to-business, government-to-government – was moving “full steam ahead.”

Then came the 2019 protests and the national security law on June 30 this year.

How did the law breach the Joint Declaration, as the UK charged?

“Well, first it was imposed, there seemed to be no meaningful consultation,” the consul general said. “It included provisions that really seem to strike at some of the freedoms that are fundamental in the Joint Declaration, to which we have signed up.”

The main thing, of course, was the promised high degree of autonomy for Hong Kong.

“It’s very hard to maintain that there is a high degree of autonomy when a piece of legislation like that, with such far-reaching consequences in terms of mainland officials now being in the Office for [Safeguarding] National Security, the Chief Executive choosing judges rather than the Chief Justice, the possibility of the mainland assuming jurisdiction over cases in Hong Kong, and so on,” Heyn said. “It’s very hard to maintain that the high degree of autonomy was being applied with the national security law.”

Besides the security law, the diplomat said, also of grave concern is what is happening on the ground in Hong Kong, such as a perceived “attempt to stifle dissent and opposition here, the arrest of activists, prosecution decisions being made with political factors playing in, disqualification of would-be candidates before they stand” and disqualification of legislators. Such actions, he said, “appear inconsistent with the terms of the Joint Declaration.”

Asked if the relationship between the UK and Hong Kong had broken down irretrievably, Heyn responded: “Of course there’s a way back.”

Significantly, Heyn added: “I think that the issue is the national security law is still very new. The UK, he said, is “watching to see how it’s going to be implemented.”

Heyn also cited words spoken by Lord Reed, the President of the UK Supreme Court, who will have to decide if British judges would continue to serve on Hong Kong’s Court of Final Appeal.

In July, Lord Reed said: “The new security law contains a number of provisions which give rise to concerns. Its effect will depend upon how it is applied in practice. That remains to be seen.”

The words of the judge and of the diplomat suggest that, if China applies the law in a mild fashion, the UK might be able to live with it, and the warm relationship of a few years ago could return between London and Hong Kong and, possibly, Beijing.

But not implementing a law doesn’t mean that it is no longer on the books. It will always remain like a sword of Damocles hanging over the heads of the people of Hong Kong. Such a situation should not be considered acceptable by the UK government or by Britain’s chief justice or, indeed, by the international community.

At the very least, there needs to be some action taken by the National People’s Congress Standing Committee to the effect that certain provisions will be frozen until 2047, the end of the 50-year period stipulated in the Joint Declaration. In addition, Hong Kong’s autonomy will have to be restored.

In the current political climate, it is difficult to see China reversing its current course of greater integration of Hong Kong into the mainland, even where the system of justice is concerned. Events are not moving in the right direction for a restoration of greater autonomy for Hong Kong.

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Frank Ching

Frank Ching opened The Wall Street Journal’s Bureau in China in 1979. He is now a Hong Kong-based writer on Chinese affairs.