Does the high degree of autonomy of Hong Kong include the right to cause harm to your own country by people in Hong Kong? It sounds like an absurd question, but ever since the National People’s Congress of China passed a decision (“the Decision”) empowering its own standing committee (“NPCSC”) to legislate a national security law in respect of Hong Kong, certain western countries had been accusing China of “reneging” from the Joint Declaration and “destroying” the autonomy of Hong Kong so that there is now only “One country One System” in Hong Kong. So much so that the US had just announced that it would remove all trade preference treatments from, and apply sanctions to, Hong Kong. All this because of one piece of legislation.
 
First, let us look at the Joint Declaration. It is a joint declaration between China and UK. By this Declaration, UK declared that sovereignty over Hong Kong should be returned to China. China in turn declared that Hong Kong would be set up as a special administrative region enjoying a “high degree of autonomy”. If you read the Declaration, nowhere does it refer to any matter relating to national security, let alone that “high degree of autonomy” includes a right to allow people in Hong Kong to undermine national security of the mother country. The same is true in relation to China’s “Basic Policies Regarding Hong Kong” included as an annex to the Declaration.
 
One supposes that the argument is that national security is within the autonomy of Hong Kong and by enacting a national security law for Hong Kong, the Central Government is not only infringing on Hong Kong’s “right” but also is destroying in one go all the rights and freedoms of the people of Hong Kong. Perhaps some, like the American Bar Association, mistakenly thought Hong Kong SAR refers to “Hong Kong Special Autonomous Region” and not Hong Kong Special Administrative Region; although one would have thought even an autonomous region would need to safeguard national security.
 
True it is article 23 of the Basic Law talks about Hong Kong SAR “shall” enact a law covering national security offences. But article 12 of the Basic Law, the same article which promises Hong Kong a high degree of autonomy, provides that Hong Kong is not only “a local administrative region” of China but also shall “come directly under the Central People’s Government”. Can it therefore be understood that Hong Kong should have final and only say on matters of national security? The answer is obviously no.
 
As to the rights and freedoms of the people of Hong Kong, let us not forget what is proposed is a piece of legislation and not an amendment to the Basic Law or a document with overriding constitutional effect. When it is passed and included in Annex 3 of the Basic Law in according with the provisions of article 18 of the Basic Law, it will become part of the laws of Hong Kong. As such, it would be interpreted, applied, enforced and adjudicated upon by the Hong Kong Judiciary just like any other law in accordance to the Common Law System under the One Country Two Systems. It follows that all the safeguards of the Common Law including the right to legal representation, the right to silence, the right to free and open trial, the burden and degree of proof beyond reasonable doubt and the presumption of innocence should be available. Not only that, both the Basic Law by article 39 and the Hong Kong Bill of Rights Ordinance apply the provisions of the International Covenant on Civil and Political Rights (“ICCPR”) to all laws and legal processes in Hong Kong thereby ensuring all the rights mentioned above would be protected in any event.
 
But perhaps the most important of all things, is that the autonomy of Hong Kong is not just about national security or the right to make one law. It is far more reaching than that. It is about the preservation and continuation of the Capitalist system, the Common Law System, the freedoms and core values safeguarded by the Basic Law, the independence of the Hong Kong SAR government in relation to all matters relating to local government, the independence of our Judiciary and the very existence and maintenance of the Rule of Law, the independence of the local Legislative Council, the independence of the Hong Kong dollar, the independent control over border control, taxes and duties, the independence of specified international memberships on trade, health, culture, sports and the like.     
 
In any event, no freedom is above national security. Anywhere. The ICCPR makes it plain. The rights under Article 12 (right of movement), Article 13 (right to remain in a place), Article 14 (right to an open trial), Article 19 (right of expression and of the press), Article 21 (right of peaceful assembly), and Article 22 (right of association) of the ICCPR are all expressly stated as subject to legal restrictions on ground of national security. In the case of M.A. vs Italy in 1981, an Italian national was convicted in relation to “reorganizing the dissolved fascist party” which was prohibited by the Italian penal law. The European Human Rights Committee refused to intervene on the ground that the legal restriction was “justifiable” by reason of Article 5, which says all rights cannot be exercised to affect the rights of others. The Committee also relied on the limitations and restrictions applicable to the rights in question under Articles 18, 19, 22 and 25. It follows that the mere fact of enactment of a national security law cannot be said to be an erosion of individual rights, let alone the Rule of Law.
 
The US Secretary of State, Pompeo said immediately after the Decision was passed that it represented a “death knell” for the freedoms of Hong Kong. Opposition leaders in Hong Kong announced “the death of One Country Two Systems” and the Rule of Law. And none of them have even seen the proposed legislation. The process of law making is yet to begin. The SAR Government has already said it would do its utmost to truly reflect the sentiment of people of Hong Kong to the NPCSC. However the new law is written, when it becomes law in Hong Kong, the whole weight of the Common Law System will be there to ensure justice is done and seen to be done. I have every confidence it will be so and those who have witnessed how our Judiciary works will no doubt share the same confidence.