The Hong Kong National Security Law and the Struggle over Rule of Law and Democracy in Hong Kong
| Author | Surabhi Chopra,Eva Pils |
| DOI | http://doi.org/10.1177/0067205X221107410 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| Subject Matter | Special Issue (Part 2): Constitutional Struggles in Asia |
Special Issue (Part 2): Constitutional Struggles in Asia
Federal Law Review
2022, Vol. 50(3) 292–313
© The Author(s) 2022
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DOI: 10.1177/0067205X221107410
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The Hong Kong National Security
Law and the Struggle over Rule of
Law and Democracy in Hong Kong
Surabhi Chopra*and Eva Pils**
Abstract
In this article, we examine the controversial national security law enacted by the People’s
Republic of China for the Hong Kong Special Administrative Region in June 2020 and consider
how this law interacts with two constitutional struggles that Hong Kong has experienced since its
return to Chinese sovereignty in 1997. The first of these is a struggle over preserving rule of law
principles protected in Hong Kong’s regional constitution, the Hong Kong Basic Law and in-
ternational treaty obligations. The second is a struggle for democratisation, pursuant to con-
stitutional commitments in the Basic Law. We argue that the national security law severely
damages Hong Kong’s much-vaunted rule of law, as well as its ability to govern itself as a
(relatively) liberal-democratic enclave within China. It muffles contestation over rule of law and
democratic principles through facilitating rule by fear as a key modality of governance. The
national security law expands the state’s coercive powers, and has the capacity to intimidate well
beyond the letter of its provisions by creating rules and mechanismsto suspend legal protections
altogether. Its provisions serve to reinscribe political discourse that has long been mainstream in
Hong Kong as deviant. But at least as much as the NSL’s actual provisions, it is the loss of judicial
scrutiny and the possibility of being transitioned into the Mainland legal system that operationalise
rule by fear.
Received 5 July 2021
I Introduction
On the night of 30 June 2020, barely an hour before the 23
rd
anniversary of Hong Kong’sreturnto
Chinese sovereignty in 1997, the government of Hong Kong promulgated the Law of the People’s
*Associate Professor at the Faculty of Law, Chinese University of Hong Kong. The author may be contacted at surabhic@
cuhk.edu.hk.
**Professor of Law, King’s College London; Affiliate Researcher at the NYU US —Asia Law Institute eva.pils@kcl.ac.uk.
Republic of China on Safeguarding National Security in the Hong Kong Special Administrative
Region (‘National Security Law’or ‘NSL’).
1
The passage of the NSL was preceded by sustained
tensions between the Hong Kong government, and by extension the central authorities in Beijing,
and diverse, vocal and agile oppositional forces challenging existing political arrangements
through the courts and legislature, as well as in the streets. Since the NSL’s enactment, many
members of the pro-democracy opposition are being criminally investigated and prosecuted, some
under the new law’s stringent provisions.
2
In this article, we examine the NSL in relation to two constitutional struggles that Hong Kong has
experienced since the Handover in 1997. The first of these is a struggle over preserving rule of law
principles protected in Hong Kong’s regional constitution, the Hong Kong Basic Law (‘the Basic
Law’) and international treaty obligations. The second is a struggle for democratisation, pursuant to
constitutional commitments in the Basic Law.
We argue that the NSL damages Hong Kong’s much-vaunted rule of law, as well as its
ability to govern itself as a (relatively) liberal-democratic enclave within autocratic China. In
Section 1 below, we situate the intertwined struggles to preserve rule of law and to dem-
ocratise within Hong Kong’s constitutional framework and history. In Section 2, we discuss
the enactment and content of the NSL. In Section 3, we consider the NSL’s implications
for the constitutional struggles over rule of law and democratisation. Far from strengthening
theruleoflawandthe‘One Country, Two Systems’framework, as the Hong Kong gov-
ernment and central authorities have declared, the NSL undermines the separation of powers
and operationalises rule by fear, which has thus far been characteristic of governance in
Mainland China.
II Context and Trajectory of Constitutional Struggle
AHong Kong’s Constitutional Framework
Hong Kong has the status of a Special Administrative Region of the People’s Republic of China
(‘PRC’or ‘China’) based on international treaty obligations under the Sino-British Joint Decla-
ration, a bilateral treaty between the PRC and the United Kingdom.
3
The territory is allowed, for a
fifty-year period, to maintain a ‘high degree of autonomy’. This ‘One Country, Two Systems’
framework is implemented through Hong Kong’s regional constitution, the Basic Law.
4
Under the Basic Law, common law principles and precedents continue to apply in Hong Kong,
and the independence of the judiciary is expressly protected.
5
The Basic Law also recognises a range
1. The Law of the People’sRepublic of China on SafeguardingNational Security in the Hong Kong Special Administrative
Region (‘National Security Law’or ‘NSL’),LN 136of 2020,B2345 (in Chinese)(‘National Security Law’or ‘NSL’); an
unofficial translation is available at
2. Eric Lai, Jeremy Huai-Che Chiang and Henry Litton, ‘Ask the Experts: Has Democracy in Hong Kong Come to an End?’,
London School of Economics Blog (Blog Post, 26 May 2021)
democracy-in-hong-kong-come-to-an-end/>.
3. Joint Declaration of the Government of the United Kingdom of GreatBritain and Northern Ireland and the Government of
the People’sRepublic of China on the Question of Hong Kong, signed 19 December 1984, 1399 UNTS 33 (entered into
force 27 May 1985) .
4. Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (‘Basic Law’).
5. Basic Law (n 4) art 8, art 19(1), art 85, art 87.
Chopra and Pils 293
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