Has the UK govt read the Basic Law?

On June 2, British Foreign Secretary Dominic Raab told Parliament: "The imposition of national security legislation on Hong Kong by the government in Beijing, rather than through Hong Kong's own institutions, lies in direct conflict with Article 23 of China's own Basic Law."

This statement is wrong at several levels. To understand why, we need to comprehend some foundational aspects of the Basic Law of the Hong Kong Special Administrative Region and the context leading to national security legislation for the SAR now being prepared by the Standing Committee of the National People's Congress.

Country's Constitution lifeblood of Basic Law

Hong Kong's Basic Law is a law of the NPC. It was passed in 1990 under the authority conferred on the NPC by Article 31 of China's Constitution (allowing for the creation of SARs within the People's Republic of China). The Basic Law provides the elemental, regional legal foundations for governing Hong Kong according to the "one country, two systems" principle. At the most fundamental level, the Basic Law draws its lifeblood from China's Constitution of 1982.

The Basic Law reflects Hong Kong's separate political system based on the "one country, two systems" principle, and within the SAR, it enjoys the standing as an ultimate law.

The Sino-British Joint Declaration on the Question of Hong Kong was signed in December 1984. Could it be the foundational source of the constitutional order in the SAR? It is an important instrument which has played a pivotal role in shaping the content of the Basic Law, but not a fundamental constitutional source of the Basic Law. It is Article 31 of the country's Constitution, not the joint declaration, which has lawfully sanctioned the creation of the Basic Law.

We also need to reflect on why national security legislation is needed in the SAR. Hong Kong has been battered by violent demonstrations which began a year ago in protest against the proposed amendment to the extradition law. The violence since then has been terrifying and the damage horrific. The Legislative Council, the SAR's legislature, was wrecked by violent political activists and, after it was repaired, brought to a virtual standstill through procedural manipulation by empathizing pan-democrat members. Also, the opposition camp is hostile toward rational forms of negotiation and disinterested in maintaining the rule of law in Hong Kong.

Violence poses a threat to HK and Beijing both

The intense political turmoil in the SAR (physically destructive and psychologically terrifying to residents, and regularly accompanied by calls for "independence") poses a national security threat both to the constitutional order of the SAR and the constitutional order of China.

Anthony Cheung (once a principal pan-democrat but later a principal official in the SAR government) recently said the primary promise of the opposition, should they secure a majority in LegCo elections in September, is "incessant confrontations and filibusters making Hong Kong ungovernable".

And Andrew Li, former chief justice of Hong Kong's Court of Final Appeal, recently observed: "Having regard to events in Hong Kong in the last few years, the decision of the NPC to authorize its Standing Committee to enact national security legislation for Hong Kong is understandable and justifiable." Other former judges have expressed similar views, as have business and community leaders－they have also stressed the importance of monitoring the operation of the new legislation.

Enacting security law in HK all but inconceivable

Let's return to Raab's statement. It's true LegCo will not enact national security legislation for Hong Kong. Previous, and now promised, disruptions in LegCo have made legislating national security law in the SAR all but inconceivable. But it's disingenuous to claim that national security legislation is not being applied "through Hong Kong's own institutions". In accordance with Article 18 of the Basic Law, national security legislation will be added to Annex III of the Basic Law by the NPC Standing Committee. It will then be applied to the region by the pivotal Hong Kong institution, the SAR government, according to the procedures set out in Article 18.

It is also incorrect to say this procedure is "in direct conflict with Article 23 of China's own Basic Law". As explained above, the Basic Law is Hong Kong's Basic Law, not China's Basic Law. More substantively, Article 23 does delegate concurrent powers to the SAR to enact national security legislation but it does not confer on the SAR the exclusive power to do so－because the primary responsibility for safeguarding national security lies with the central government.

That the SAR seriously needs national security legislation goes without saying. And its application is fully grounded, constitutionally. The claims to the contrary by Raab simply do not stand up.

Yet Raab is not the only member of the British government to comment on the issue. In his commentary published in London and Hong Kong newspapers recently, British Prime Minister Boris Johnson claims the legislation would put China "in direct conflict with its obligations under the Joint Declaration". But Beijing's legal and constitutional obligations under "one country, two systems" are fundamentally embodied in the Basic Law, not in the joint declaration.

Minister's remark exposes UK's double standard

And how does the UK treat its own "obligations" when it comes to international legal decisions and instruments? On Feb 25, 2019, the International Court of Justice asked the UK to hand back the Chagos Islands in the Indian Ocean to Mauritius "as rapidly as possible". The British occupation of the archipelago, which includes Diego Garcia, was ruled illegal. By 1973, all its inhabitants were forcibly removed by the British so a (now massive) US-UK military base could be established in Diego Garcia.

Yet the British minister for Asia and the Pacific announced that the UK government would maintain the base to help "keep people here in Britain and around the world safe". The ICJ judgment was, the UK said, only advisory. The United States robustly endorsed this view. The fact that the British minister made the announcement at the commencement of a speech to the Royal United Services Institute, urging everybody to adhere to the "rules-based international system" makes the inconsistency even more breathtaking.

The claims of Johnson and Raab might pass muster as worthy assertions in Whitehall. They do not, however, draw on a clear understanding of the fundamental constitutional regime, in China, governing the relationship between Beijing and Hong Kong and the central leadership's paramount responsibility of safeguarding China's national security. A thoughtful, timely reading of the Basic Law, in context, could have revealed this before Johnson and Raab made the hasty, politicized claims.

The author is a visiting professor in the Faculty of Law, The University of Hong Kong. The views don't necessarily reflect those of China Daily.