Death of a City: How Legal Mechanisms Caused Democratic Backsliding in Hong Kong

“How did you go bankrupt?” “Two ways. Gradually and then suddenly.”

~ Ernest Hemingway, ‘The Sun Also Rises’ 

Introduction

Hong Kong has long been shaped by a complex interplay of historical legacy, distinctive legal frameworks, and intricate geopolitics. Once a British colony, the city inherited a robust system of common law and considerable civil liberties despite lacking full democracy. However, the return of Hong Kong to Chinese sovereignty in 1997 gave rise to a new and precarious legal arrangement, known as ‘one country, two systems’. Negotiations between Britain and China before the handover produced the ‘Sino-British Declaration’ and ‘Basic Law’.  The documents promised the continuation of Hong Kong's lifestyle until 2047. These elements include a high degree of autonomy from the mainland, an independent judiciary (Article 2, Basic Law), and an eventual commitment to universal suffrage (Article 45, Basic Law). However, legal mechanisms within the Basic Law, coupled with actions by the Chinese and Hong Kong Governments, have enabled and even spurred democratic regression. 

The most devastating of these instruments was the 2020 ‘National Security Law’ (NSL), and its successor, the 2024 ‘Safeguarding National Security Ordinance’ (SNSO). These laws confer new powers upon the government to investigate acts that ostensibly threaten national security. Crimes such as secession, treason, collaboration with external interference, and theft of state secrets all fall under the purview of these bills, with life imprisonment as a potential penalty for the more serious crimes (e.g. treason)., While these crimes have severe consequences in many jurisdictions, Hong Kong’s legislation has a far too broad purview. At least 318 individuals have been arrested for violations of national security, with the consequent curtailing of protests and free speech, causing the complete destruction of the democratic movement in Hong Kong. It is crucial, however, to note that the decline of democratic rights in the city began long before 2020. For instance, provisions established before the handover in Hong Kong’s Basic Law, its de facto constitution, granted China a considerable amount of leeway to intervene in the city’s politics. Electoral rules and reforms have led to selective appointments of political candidates and have also been a key factor.

This article examines how legal mechanisms have been utilised to facilitate democratic backsliding in Hong Kong, and by extension, how authoritarian regimes can weaponise the law to undermine civil liberties while maintaining a façade of legitimacy. Hong Kong’s predicament can inform the world about the role of law in democracy, offering insights for protecting democratic institutions against similar threats elsewhere.

The Basic Law: A Framework for Exploitation

The Basic Law of Hong Kong is the de facto Constitution of the Hong Kong Special Administrative Region (HKSAR), enacting China’s basic policies regarding the region. Above all, it espouses the principle of ‘one country, two systems’, allowing Hong Kong to retain its prior legal and administrative system until 2047. Thus, while the Basic Law describes Hong Kong as ‘an inalienable part of the People’s Republic of China’, it also permits it ‘a high degree of autonomy’ and the right to ‘enjoy executive, legislative and independent judicial power, including that of final adjudication’. This unique arrangement has, for instance, allowed for Hong Kong’s very own regional flag and emblem, and fostered a sense of belonging to the city itself rather than towards the nation as a whole. It must be said, however, that the Chinese Government crafted the Basic Law with great deftness. That China is a dictatorship is not only unquestioned by scholars – it is enshrined in its own Constitution. Consequently, embedded within Hong Kong’s Basic Law are provisions that bestow substantial authority upon Beijing, which has leveraged it to curb democratic development. 

For one, the power to amend the Basic Law lies solely with the National People’s Congress (NPC), China’s highest organ of state power. Article 159 of the Basic Law unequivocally states that ‘the power of amendment of this Law shall be vested in the National People’s Congress.’ The NPC mainly comprises members of the Chinese Communist Party (CCP) or its subordinates; its policies are invariably the will of Party leadership. The SAR Government can merely propose amendments, and even then, they require approval from NPC deputies. Therefore, the Chinese Government can technically alter the Basic Law as it sees fit – a prerogative it exercised in 2020 to introduce the National Security Law. Naturally, having the law of the land be so amenable to China, an authoritarian state, compromises Hong Kong’s democratic integrity.  

This is exacerbated by China’s power to interpret the Basic Law, as detailed in Article 158 of the Basic Law: ‘The power of interpretation of this law shall be vested in the Standing Committee of the National People’s Congress.’ The Chinese Government can therefore override local judicial decisions and impose politically driven reinterpretations. This power manifested itself in Ng Ka Ling v Director of Immigration, where the Court of Final Appeal (CFA) initially ruled that mainland-born children of HKSAR permanent residents enjoyed the right of abode. The NPCSC promptly issued an interpretation and overturned the ruling, setting an early precedent for judicial interventions. 

Perhaps the most infamous Basic Law provision, however, is Article 23, which states that the HKSAR shall enact laws to prohibit acts that would threaten China’s national security. The first attempt to enact these laws met sweeping protests, with 500,000 citizens taking to the streets and forcing the government to withdraw the legislation. Nevertheless, it was this very provision that formed the legal basis for the ‘Safeguarding National Security Ordinance’, the final nail in the coffin for political rights in Hong Kong. The ramifications of this Ordinance will be discussed in later sections.

China’s near-unilateral ability to interpret and amend the Basic Law often comes at the detriment of Hong Kong’s democratic institutions. As with all laws, the Basic Law contains textual ambiguities that can be construed in multiple ways. Some purport that the problem, therefore, is not with the text itself, but the actions of the CCP leadership. Regardless, while the Basic Law is certainly a cornerstone of the HKSAR, it is also a permissive instrument, vulnerable to exploitation, that forms a legal justification for Chinese intervention. Yet it is far from the only cause of Hong Kong’s democratic backsliding. As discussed below, national security legislation and electoral ‘manoeuvring’ also have major roles to play.

National Security Legislation: A Tool for Suppression

The preservation of national security is among the foremost duties of government. It is universally accepted that the right to security is a foundational human right, and many countries have enacted legislation that recognises and safeguards that right. China is no different, and as of 2020, neither is Hong Kong. However, the city’s NSL and SNSO are not merely embroiled with controversy – they are subjects of widespread, international condemnation.

Thunderous applause accompanied the passing of the ‘Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region’ – with an overwhelming ratio of 163-0. The National Security Law was formulated as a countermeasure against the 2019 protests, a series of demonstrations against a controversial bill that would allow Hongkongers to be extradited to the mainland for sentencing if they committed crimes there. This was considered to be extremely alarming because compared to Hong Kong’s (then) relatively healthy judiciary, the legal system in the mainland is plagued with flaws such as the lack of fair trial, limited access to legal representation, arbitrary detention, and poor prison conditions. Widespread protests broke out that caused considerable social unrest, persuading the central government to crack down. Implemented on the 30th of June 2020, the law establishes four particular crimes: secession, subversion, terrorism, and collusion with foreign organisations. Any promotion or even intention of Hong Kong’s secession is also a grave crime. The Law entitles authorities to surveil, detain, and search anyone suspected of these crimes. It also mandates that publishers and internet services censor any information that is deemed a violation. There is even a national security office outside of the SAR’s jurisdiction, staffed entirely by mainland officials.

In isolation, the law may be perceived by outsiders as reasonable, even innocuous. After all, what government does not implement measures to safeguard its existence and the security of its citizens? The right to security is enshrined in constitutions on a global scale, and rightfully so. However, across the world, there is a fragile balance between security and civil liberties; in many cases, they stand in stark contrast to each other. This is especially the case under the NSL, where authorities have prosecuted many pro-democracy figures, prominent among them including Joshua Wong, Agnes Chow, and media tycoon Jimmy Lai. Virtually all of the pan-democracy leaders in Hong Kong are under arrest, currently face prosecution, or have fled the country. For instance, a massive crackdown in 2021 led to the arrest of 53 activists and the raid of multiple news outlet offices. 47 of them were later charged with conspiracy to commit subversion, with one organiser given a prison sentence of 10 years. It is important to note that the law was applied retrospectively – their actions were not illegal when they had been committed. Retroactive laws are often frowned upon, especially in a criminal context, because they can theoretically empower the state to penalise anyone, for any action, at any point in time. These arrests have decapitated the democracy movement in Hong Kong and decimated the amount of civil participation. In 2019, the voter turnout for Hong Kong’s District Council elections was 71.1 percent; in 2023, after the NSL, it was 27.6 percent. Protests and demonstrations are also a thing of the past – since 2021, there have been no large-scale demonstrations at all. True, there has been a restoration of social stability, but at what cost? Silence, not peace, is what permeates the land.

The 2024 enactment of the Safeguarding National Security Ordinance was even more draconian. Ostensibly, it seeks to punish legitimate, severe crimes such as treason, insurrection, espionage, sabotage, and external interference. Yet the SNSO is also a profound threat to basic freedoms. Perhaps the most apparent problem is its sheer scope: the definition of ‘national security within Article 2 mirrors that of China’s ‘holistic national security’ position, which encompasses virtually all social domains, including ideology, culture, finance, defence and so on. Furthermore, the purview of what constitutes a national security violation is simply too broad. For instance, Article 11 criminalises someone who ‘publicly manifest(s) an intention to commit treason’ – that is, a citizen can be convicted if they vocalise treacherous thoughts, even if an act of treason is not actually committed. What constitutes ‘treason’ is even more suspect. When Article 10, Section 1(e) describes a person who ‘with intent to endanger the sovereignty, unity or territorial integrity of China, uses force or threatens to use force’, what do they concretely mean? In reality, vague language is pervasive within the SNSO: what, for example, is ‘an intention to bring a Chinese citizen…into hatred, contempt, or disaffection…against the fundamental system of the state established by the Constitution of the People’s Republic of China’? The ambiguity presented within the SNSO is unsettling because it permits the targeting of almost every facet of human behaviour, without necessitating proof of a genuine security threat. Of course, the punishments for committing crimes against the SNSO are even more ruthless. Life imprisonment for insurrection, fourteen years in prison for treason, seven for sedition…the list goes on. With such severe penalties that can be applied to every whim of the government, it is no wonder there has been a chilling effect on the city.

These national security laws have led to the forfeiture of the freedom of the press. Notable liberal newspaper Apple Daily  and its parent company had their offices raided and were forced to shut down after their assets were seized. Pro-Beijing media outlets had always been hegemonic in Hong Kong – most of the city’s newspapers have been owned by pro-China businessmen since the mid-2000s – but they are virtually uncontested today and toe the party line with fervour. Self-censorship has also been mounting, with media outlets becoming increasingly reluctant to overtly criticise the Central Government for fear of reprisal. This steep decline is reflected in the numbers, with Reporters Without Borders giving a score of 43.06 (out of 100) and an index of 135/180 in terms of press freedoms.

Worse still, the NSL’s jurisdiction extends beyond the borders of Hong Kong and China. Article 38 of the NSL exerts extraterritorial jurisdiction over people outside of Hong Kong, regardless of nationality, and criminalises acts of subversion (as defined in the law) by anyone, anywhere. Authorities have even gone as far as to offer substantial rewards for information leading to the arrest of pro-democracy activists. It should be abundantly clear that the National Security Law has an ulterior motive. Its true aim is not to safeguard national security: it is a law, aimed at cracking down on dissent, that has eradicated the bedrock of democracy in Hong Kong. 

Electoral Rules & Reforms: A System for Sabotage

Despite Hong Kong’s Western influences, it has never seen true democracy. Calls for democratic reform, though persistent, have seen minimal progress, while the Chinese and Hong Kong Governments have gradually stripped political rights from Hongkongers. Nevertheless, the city did have some limited form of political franchise in the past. Elections had always been indirect, but some of them were genuine elections, insofar as the winning candidate was unknown beforehand. At times, even the democratic factions could win – the aforementioned 2021 District Council elections were a landslide victory for the pan-democracy camp. The days of true elections are now a memory. 

Beijing has sought to preside over the SAR’s elections since the outset of the handover. Perhaps the most egregious manifestation of their interventions is in the election of the Chief Executive, the most senior official in the SAR. The Chief Executive is elected indirectly, through an Election Committee dominated by pro-Beijing politicians and business leaders. Furthermore, the Chief Executive of Hong Kong, along with their most senior officials,  have to be vetted and appointed by the Central Government. It is therefore not surprising that the SAR governments have all strived to carry out the will of the Central Government. The most recent Chief Executive, John Lee, took office in 2022. He was the sole approved candidate by Beijing, winning 99.44 percent of the vote. Before this, in 2004, the NPCSC made an interpretation of Article 7 of Annex I and Article 3 of Annex II, stating that ‘the Chief Executive shall make a report to NPCSC [sic] as regards whether there is a need to amend the method for selecting the Chief Executive and … the Legislative Council’. This entails that changes to the SAR’s electoral system require approval from China, effectively halting the road to universal suffrage. 

While the elections for Chief Executive show a blatant disregard for the ideals of democracy, one should note that this is less a regression and more the unmasking of a façade. After all, even back when multiple candidates were contending for the office, none of the Chief Executives incurred Beijing’s disapproval. In the past, having a legislature that was not completely devoted to the will of the CCP could provide some semblance of pushback against the government. Following electoral changes, especially the 2021 overhaul, even that prospect is gone. To ensure that only ‘patriots’ could govern Hong Kong, the NPCSC initiated sweeping electoral reforms in 2021. They accomplished this by amending Annex I and Annex II of the Basic Law, which describe the methods used to elect the Chief Executive and the Legislative Council (the legislature of Hong Kong) respectively. The Election Committee for the Chief Executive would have its seats increased from 1200 to 1500, with many of the new seats given to government-controlled organisations., The Legislative Council was impacted even more severely: the share of directly-elected representatives dropped from 50.0 percent to 22.2 percent, while the Election Committee gained the right to elect 44.4 percent of seats. The reforms also introduced a vetting system, dictating that all candidates for the Chief Executive, Legislative Council, and Election Committee needed to be approved by the ‘Committee for Safeguarding National Security’. Consequently, the last election for the Legislative Council was less a landslide and more a massacre – the pro-Beijing camp occupied 89 out of 90 seats, a rate of 98.9 percent.  

The electoral system of Hong Kong has never been completely fair, but the 2021 reforms have significantly constrained democratic representation. Beijing has all but expressly forbidden the pro-democracy faction from participating in elections. So complete is the demise of political well-being that the Hong Kong Democratic Party, once the largest opposition party, is now in talks for dissolution. Such is the state of the city that even the veneer of civic participation has been ripped asunder. 

Conclusion

The death of democracy in Hong Kong came in two ways: gradually, and then suddenly. A shaky foundation in the Basic Law, followed by slow, unhurried erosions in electoral integrity, culminating in massive crackdowns following the 2019 extradition bill protests, and a final hush with the Ordinance. The chilling effect on the city is invisible yet palpable: seldom do people talk about politics because they fear retribution from the government, and because there is frankly no point of discussing a forsaken cause. Of course, the politicians still give their lofty statements, but they invariably exude an air of self-congratulation or obsequious deference to the Central Government. 

The events that transpired in Hong Kong are a dire warning to the world, that threats to democracy are real, not something relegated to the distant past or obscure corners of the world. They are also a testament to the power of the law. The rule of law has propped up democracies across the globe. However, the story of Hong Kong also demonstrates that when in the wrong hands, the law can permit and even facilitate the dismantling of democratic institutions. It is said that experience is the greatest teacher. Let us hope, then, that its lessons prove fruitful even when learnt vicariously. 

Nicholas Chiu

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