Michal C. Davis is a Global Fellow at the Woodrow Wilson International Center for Scholars. A highly regarded scholar on human rights in Asia, Davis also serves as the Professor of Law and International Affairs at Jindal Global University in India, and a Senior Research Scholar at the Weatherhead East Asia Institute at Columbia University. Until 2016, he was a professor in the Law Faculty at the University of Hong Kong.
Davis discussed his new book, Making Hong Kong China: The Rollback of Human Rights and the Rule of Law (2020). He highlights the impact of the 2020 Hong Kong National Security Law on the decay of human rights, democracy, and the rule of law in Hong Kong as mainland China exerts increasing control over the Special Administrative Region.
The 2019 and 2020 Hong Kong protests were primarily an effort by the people of Hong Kong to preserve their autonomy in light of increased interference by Beijing. Protestors and organizers are adamant that autonomy is necessary for preserving the rule of law. To Beijing, however, these protests were an insurrection, and they responded as such with the aggressive use of police force and passage of the National Security Law.
The National Security Law, passed in June 2020 by the Standing Committee of the National People’s Congress, was a comprehensive attack on the rule of law and basic freedoms in Hong Kong, signaling that the constitutional system is undergoing major change. Davis argues that the law, which was rammed through without public consultation or a formal vote in the Hong Kong Legislative Council, transforms Hong Kong from a liberal constitutional order into a predominantly national security constitutional order. Not only is the power of interpretation of the law vested in the National People’s Congress, but Hong Kong law stipulates that the National Security Law takes priority over Basic Law if conflict arises between the two. The law bans secession, subversion, terrorism, and collusion with foreign forces, all of which are defined vaguely and allow for individuals to receive heavy sentences for mere conspiracy and abetment of these crimes.
To enforce the National Security Law, both a local Committee on Safeguarding National Security and mainland Office on Safeguarding National Security were formed. The local Committee, which is not subject to judicial review and is answerable to mainland officials, issued police guidelines allowing for warrantless searches and surveillance and providing a special list of Hong Kong judges to hear national security cases. This “built in distrust of the Hong Kong judicial system,” as Davis describes it, is echoed by the mainland Office, which lies completely outside the jurisdiction of Hong Kong courts and operates in secret.
So far, 97 people have been arrested under the National Security Law, with the vast majority of allegations amounting to nothing more than speech. All 53 participants in a July opposition party primary election were arrested under the allegation of trying to take control of the legislative council. As Davis described it, Beijing viewed winning an election as equivalent to a coup d’état. Beijing continued its harsh enforcement of the law by expelling four opposition members from the Hong Kong legislature, and as a result, the remaining opposition lawmakers all resigned. Jimmy Lie, publisher of the pro-democracy paper Apple Daily, was also arrested on charges of colluding with foreign forces, with the People’s Daily and other publications referring to him as a “dangerous individual” and arguing that his crime was akin to murder, even though it was merely a crime of speech. Guidelines have also been issued for primary and secondary schools, banning teachers from treating the national security law as a controversial issue, essentially outlawing any discussion of politics in schools. As a result of this campaign of fear against free speech, protests have dramatically died down in Hong Kong.
The impact of the National Security Law is far-reaching across all sectors of society, making mitigation efforts difficult. The US has imposed sanctions on some officials, but their effect will likely be negligible. Meanwhile, the UK has granted extended immigration, giving about a third of the Hong Kong population an easy path to immigrating to Britain. According to Davis, It seems that the fight is largely going to be on the backs of political leaders.
“While the government said this law would only reach a few bad apples, it seems to have reached all of society.”