Jiang Shigong, "Probing the Imaginary World"

Jiang Shigong, “Probing the ‘Imaginary World’ and the ‘Real World’ to Understand the Internal Legal Logic of Hong Kong's National Security Law”[1]
 
Introduction and Translation by David Ownby
 
Introduction

The year 2020, an annus horribilis if ever there was one, will be most remembered for the coronavirus pandemic that swept the globe, but what Jeff Wasserstrom has called the death of democracy in Hong Kong was surely a tragedy as well.  After months, even years, of massive pro-democracy demonstrations and increasingly violent confrontations with authorities—provoked, many insisted, by police brutality—everything came to an end in May, when the Standing Committee of China’s National People’s Congress imposed a national security law on the Hong Kong Special Administrative Region. 

The subsequent arrest and imprisonment of democracy activists like Joshua Wong and China critics like Apple Daily publisher Jimmy Lai are not isolated events intended to “frighten the monkey by killing the chicken,” but instead announce China’s intention to fundamentally transform Hong Kong’s political culture.  An excellent chronicle of the events leading up to China’s intervention can be found in Sebastian Veg’s commentaries.  Another guide to what is happening beyond the headlines is Antony Dapiran’s newsletter, “A Procrastination.”

Western media have generally portrayed the Hong Kong drama in Cold War terms, valiant forces of democracy vying against creeping tentacles of Communist totalitarianism, which of course is not without elements of truth.  At the same time, this black and white picture is an over-simplification, ignoring early hopes that the “tail might wag the dog” (i.e., that China in reform and opening mode might move in the direction a rules-based authoritarianism akin to Hong Kong’s colonial order), as well as the genuine difficulties of making “one country-two systems” work. 

The entire history, which is beyond the scope of this brief introduction, is surely full of missed signals and bungling, as well as perfidy and bad faith.  The text translated here illustrates how one influential Mainland intellectual, Jiang Shigong, chooses to tell the story.  A translation of a text on the same subject by Jiang’s colleague Chen Duanhong is available here.  I should hasten to add, to avoid any misunderstanding, that I do not share their views at all.

Jiang Shigong (b. 1967) is a professor at the Peking University Faculty of Law, and a prominent New Left intellectual in China.  He is a talented apologist for Xi Jinping Thought, a champion of China’s rising “empire,” and has written on hot-button issues like Sino-US relations.  Jiang has also played a major role in shaping China’s policy toward Hong Kong. 

He spent a considerable amount of time in the Special Administrative Region, teaching at Shue Yan University beginning in 2002 and then working as a researcher in Beijing’s Liaison Office in Hong Kong from 2004 to 2008.  He published a book--China’s Hong Kong—in 2010 (English translation published in 2017), and is credited with penning the 2014 Chinese-government white paper that gives Beijing “comprehensive jurisdiction” over Hong Kong.

Jiang is also one of many New Left intellectuals in China to have been influenced by the ideas of Carl Schmitt (1888-1985), the German critic of liberal constitutionalism commonly referred to as “Hitler’s crown jurist” for his service to the Nazi regime.  Schmitt’s thought is complex (for a brief, if thorough overview, see here), but for our purposes can be reduced to two essential points:  any legal, constitutional order requires a sovereign to function properly; and the point of politics is to win, victories being achieved by distinguishing friends from enemies. 

Schmitt’s original ideas emerged in the context of the decline and fall of the Weimar Republic, and have been recycled by various critics of liberalism, from both the right and the left (and by a certain American president who surely never read the German jurist, but whose political reflexes naturally tend toward the Schmittian). 

In China, interest in Schmitt began in the 1990s, when the fall of the USSR, and fears that China might suffer the same fate, fueled the search for a new and improved authoritarianism, and the main propagators of Schmitt’s theories have been New Left intellectuals (on Schmitt in China, see Veg, Reinhardt, and Chang, among others).  The appeal in the Chinese context is obvious:  in the 1990s, China’s “side” appeared to be losing, which meant that the Chinese people should unify and rally around the “sovereign,” i.e., the CCP and/or its leader.  China’s later rise to great power status calmed fears that China might fall apart, but Schmitt’s ideas remain useful for those who defend of the unique “China model” in the face of Western criticism.

The text translated here is Jiang’s defense of China’s imposition of a national security law for the Hong Kong Special Administrative Region in May of 2020.  Actually, it is the first of two texts Jiang wrote at this time.  The second is a more formal, legal text, entitled “‘Dual-Track Legislation’ and Institutional Perfection: A Jurisprudential Analysis of Hong Kong's National Security Legislation 「雙軌立法」與制度完善——香港國家安全立法的法理分析,” and published in Mingbao on June 11 (now pay-walled; I have finished a rough draft of this text and will share it with interested readers), while this one, published in Bauhinia Magazine, which caters to left-wing, pro-China readers in Hong Kong, is more accessible to non-jurists (we might call its tone “Schmittism with a human face”).
 
The core of Jiang’s argument is the final section where he relates “two stories” about the passage of the National Security Law.  In the “imagined” version held by some Hong Kong people, the point of the Basic Law was to protect Hong Kong from undue interference by Beijing, ultimately assuring Hong Kong’s democratic future.  In the wake of the tensions produced by the failure of Hong Kong authorities to enact a National Security Law in 2003, however, some Hong Kong people adopted a more aggressive, or offensive, posture, leading to demonstrations and calls for Hong Kong independence. 
 
Although Jiang admits that there were always tensions and unresolved issues in the “one country-two systems” framework through which Hong Kong’s retrocession was accomplished, he nonetheless insists that many Hong Kong people had misread the purpose of the Basic Law.  The Basic Law was meant to tie Hong Kong to China as part of the same nation, and a “high degree of autonomy” did not include measures—like violence and calls for independence—that called China’s national security into question.  When push comes to shove, Jiang argues, the center is the center and the periphery is…peripheral.  Perhaps if Hong Kong authorities had implemented a National Security Law, things might have evolved differently, but they did not, so here we are, finally, in the “real world.”  Of course, not everyone agrees with Jiang’s telling of the story; click here to read a powerful refutation.
 
The rest of Jiang’s text if of a piece with his other writings in that he suggests that the new China is the wave of the future and, in this context, that Hong Kong people should climb aboard.  Throughout, he stresses the contradiction between what Hong Kong people “imagine” and what the “real world” is (these are stand-ins for Schmitt’s enemies and friends).  He sees their Cold War fears of Communism and the Cultural Revolution as passé, and points out that the same Hong Kong youth that have been demonstrating also face bleak futures because of the structure of Hong Kong’s economy.  China is wide open, he suggests.  Be brave and go take a look.  Li Ka-shing did it.  You can too!   
 
Thanks to Sebastian Veg for suggesting these texts.
 
Links to other texts available on this site

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Click here for texts related to the theme of democracy.

Favorite Quotes
 
“China has a population of 1.4 billion, of which more than 90 million are members of the Communist Party, which pretty much means that there is a Party member in every family. I am a Party member, and many of my colleagues at Beijing University are also Party members. The Communist Party is not a mystery, and you can apply for membership if you meet the requirements. If a student wants to become a member of the Party, he or she must not only study well, but also have good moral character; he or she must not only care about his or her own interests, but also about the common affairs of other people, and the society and the country as a whole.

The Communist Party is deeply rooted in every Chinese family and in the soil of Chinese society as a whole. In addition, if you are a scientist, a doctor, or a lawyer, you can apply to join the Communist Party as well as a democratic party, and possibly become a member of the Chinese People's Political Consultative Conference, if you are very good in your profession and have good moral character. But many Hong Kong people close their eyes to this and do not look, do not learn, so that no one tells them about this ‘real world.’”
 
“It is through this ‘aggressive imagination’ of the Basic Law that some people in Hong Kong started to move away from passively defending against the NPC's interpretation of the Basic Law toward a very different path of actively fighting for universal suffrage. To this end, some members of the legal profession in Hong Kong came to imagine that the power of the central authorities and the high degree of autonomy of Hong Kong established by the Basic Law functioned as a federal model, and thus came to believe that the right to make decisions on Hong Kong's constitutional development is reserved to Hong Kong as a ‘residual power.’ 

In fact, the Basic Law is an important part of the constitutional system of the country, and the high degree of autonomy of the SAR originates from the authorization of the central authorities under the unitary structure of the country, and the power to make decisions on political development that the Basic Law fails to specify is reserved to the central government. The NPC's interpretation of the Basic Law on the issue of Hong Kong's constitutional development has undoubtedly shattered this ‘federalist imagination’ of the Basic Law.”
 
“The Basic Law is the institutionalization and legalization of the central government's policy towards Hong Kong as set out in the Sino-British Joint Declaration, signed in December, 1984. However, if you look at the central government’s policies on Hong Kong as expressed in that document, there is no policy promise of ‘universal suffrage’ for the election of the Chief Executive or the Legislative Council. In 1992, in violation of the Sino-British Joint Declaration and in spite of strong opposition from China, Hong Kong’s ‘last Governor’ Chris Patten (b. 1944) unilaterally announced his political reform package four months after taking office, suddenly launched democratic reforms in Hong Kong, causing an uproar.

At the outset, the provisions of the draft Basic Law on how to elect the Chief Executive and the Legislative Council were left blank because no consensus could be reached. On the question of Hong Kong, the central government wanted ‘retrocession’ while Hong Kong wanted ‘democracy,’ which made consensus difficult. Later, the moderate and pan-democratic camps in Hong Kong put forward the political idea of ‘democratic reunification’ in an attempt to satisfy both Hong Kong's democratic aspirations and the central authorities' idea of retrocession, and some Hong Kong people came to be trapped in imaginary notion that the Basic Law was about ‘democratization.’”
 
“However, Deng Xiaoping was keenly aware of the problems encountered in the drafting of the Basic Law, and made a series of important speeches, highlighting the relationship between the central authorities and the SAR, the relationship between democratic universal suffrage and national security, and pointing out the direction in which work on Hong Kong should proceed. For example, he believed that the political system of Hong Kong should not be based on a tripartite separation of powers; that universal suffrage might not necessarily result in the election of a Chief Executive loyal to both Hong Kong and the central government; and that the central authorities must intervene if something were to occur in Hong Kong that endangered national security.

It was under this guidance that the issue of national security legislation first appeared in the draft Basic Law. The first few drafts only stipulated the prohibition of acts that undermine national unity and subvert the central government. Later, considerable modifications were made, especially when the opposition in Hong Kong involved itself deeply in the 1989 political turmoil, which highlighted the importance and urgency of safeguarding national security in Hong Kong. It should be noted that during the discussions on the drafting of the Basic Law, the idea of having the central authorities directly enact national security laws and add them to Annex III of the Basic Law for implementation in Hong Kong had been raised. In other words, the NPC's recent Decision had already appeared in the drafting process of the Basic Law, and what was ‘imagined’ at that point became the reality of national security law some decades later.”
 
Translation
 
On May 22, 2020, the National People's Congress (NPC) made a “Decision on the Establishment of a Sound Legal System and Enforcement Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region” (hereafter "Decision").  As soon as the Decision was announced, it immediately triggered strong reactions in Hong Kong, the Mainland, and even the United States and the United Kingdom. Some people cheered and supported it, while others feared and opposed it.

Given the supreme authority of the NPC in the national constitutional system, the Decision is undoubtedly a milestone in the process of building "one country, two systems" in Hong Kong, and its implementation will have a profound impact on the central government's system of governance, the development of "one country, two systems," and the political ecology of Hong Kong. In order to understand the Decision, I would like to share some relevant stories and discuss how best to understand several jurisprudential issues involved in the Decision, as we find ourselves in a misfit between the "imaginary world" and the "real world".
 
Two Hong Kong Stories: Between "Imagination" and "Reality”
 
In 2002, I began teaching at the Hong Kong Shue Yan University (then called Shue Yan College). On one occasion, the founder of the university, Barrister Henry Hung-lick Hu 胡鴻烈 (b. 1920), told us a story of Hong Kong. When the news that China was going to take back Hong Kong was first announced, Hu said, Hong Kong's stock market plummeted, land prices fell, and people rushed to emigrate, but he took advantage of the occasion to purchase Braemar Hill 寶馬山, a valuable piece of land in North Point, to serve as the future site of the campus for the college. At that time, there was a saying in Hong Kong that "those who do not fear the Communist Party can become the new rich," and it was in this context that Li Ka-shing 李嘉誠 (b. 1928) and others rose to prominence.
 
The story told by Barrister Hu is a classic Hong Kong story, as well as a classic story of the intersection of the “real world” and the “imaginary world.”  In the 1980s, many Hong Kong people’s images of China were still based on events like the 1957 "Anti-Rightist campaign" and "Cultural Revolution," and as a result they made the painful choice to emigrate or even flee because of their "fear and rejection of the Communist Party." 

However, other Hong Kong people, like Henry Hu and Li Ka-shing, sought to understand the Mainland, studying the Communist Party of China and the reform and opening policies launched by the central government. This allowed them to arrive at a rational judgment about the Mainland, the policies of the central government, and the future Hong Kong under their influence, finally understanding the "real world" in which the marriage of a Mainland China under reform and opening and a capitalist Hong Kong would bring economic prosperity. It was based on their judgment of this "real world" that they not only purchased land in Hong Kong on a large scale, but also invested widely in the Mainland, quickly becoming business leaders in Hong Kong.
 
Today, as a result of the NPC's Decision, Hong Kong is once again in a state of tension; not only is the stock market falling, emigration is once again becoming a hot topic on the Internet. Against this backdrop, instead of falling into the "imaginary world" of emotional terror, we should study the "real world" and systematically examine the central government's policy towards Hong Kong, as well as the speeches of our national leaders on Hong Kong issues, so as to accurately determine who truly is targeted by the central government's legislative actions to protect national security in Hong Kong.  Only by thinking rationally can we help Hong Kong people abandon the "imaginary world" for the "real world," and thus make the right choice.
 
Some ten years after beginning to teach at Shue Yan University, I returned to Peking University. Because of my work in and special feelings for Hong Kong, after returning to China I often gave lectures to Hong Kong exchange student groups who came to Peking University, explaining developments on the Mainland. During this period, local radical movements in Hong Kong were intensifying, and the conflict between Hong Kong and the Mainland was getting deeper and deeper. When I asked the Hong Kong students to talk about their understanding of the differences between Hong Kong and the Mainland, some mentioned Hong Kong’s status as an international metropolis, while others talked about freedom of speech in Hong Kong. 

In contrast to this, one girl timidly said something that left a deep impression on me, which was that she had noticed how hard the Mainland students studying in Hong Kong worked, and that they always sat in the front row in class.  Thus while most Hong Kong students were steeped in their beautiful "imagination" of Hong Kong as a cosmopolitan metropolis, this girl instead saw the "real world:" the young generation of Mainlanders working hard, striving to study in the world's most prestigious universities, displaying the lively spirit of wanting to absorb the knowledge of the whole world.
 
I tried use what this young woman said to describe rapidly and simply the "real world" of the Mainland and the Chinese Communist Party to the Hong Kong students. China has a population of 1.4 billion, of which more than 90 million are members of the Communist Party, which pretty much means that there is a Party member in every family. I am a Party member, and many of my colleagues at Beijing University are also Party members.

The Communist Party is not a mystery, and you can apply for membership if you meet the requirements. If a student wants to become a member of the Party, he or she must not only study well, but also have good moral character; he or she must not only care about his or her own interests, but also about the common affairs of other people, and the society and the country as a whole.

The Communist Party is deeply rooted in every Chinese family and in the soil of Chinese society as a whole. In addition, if you are a scientist, a doctor, or a lawyer, you can apply to join the Communist Party as well as a democratic party, and possibly become a member of the Chinese People's Political Consultative Conference, if you are very good in your profession and have good moral character. But many Hong Kong people close their eyes to this and do not look, do not learn, so that no one tells them about this "real world."
 
Trapped in the "imaginary world" of their cosmopolitan metropolis, the young generation born after Hong Kong’s retrocession lacks the courage to open their eyes and see the world, and they do not dare cross over the Lo Wu Bridge to see the vibrant Mainland. They see Hong Kong as a part of the Western world, and treat the Western world as the whole world, never thinking about the 9.6 million square kilometers of China.  The world they imagine is a fragmented world, not a complete world.  In the "real world," China has already become the engine driving the world's economic growth.

When Frank Wang (Wang Tao) 汪濤 (b. 1980), the founder of Shenzhen DJI Sciences and Technologies, was studying at the Hong Kong University of Science and Technology, she was one of those Mainland students who sat in the front row and studied hard, just like those the Hong Kong student mentioned. While Wang Tao was leading the global trend of technological development, many Hong Kong students were mired in their memories of Hong Kong's past as a cosmopolitan city, and launched a local radical movement, which later evolved into the "Umbrella Revolution" with its violent behavior.  Given this context, instead of being terrified by the NPC's Decision, Hong Kong people today should bravely cross the Lo Wu Bridge and see what the object of their fear really looks like. Only then can they return to the "real world" and make new arrangements for their future.
 
Hong Kong people are immersed in an "imaginary world," and so are some Mainlanders, whose knowledge of Hong Kong is still limited to the "imaginary world" of individual struggle and miracles occurring "below the Lion Rock."[2]  But the "real world" of Hong Kong is monopolized by commercial capital, and there is little space for upward mobility of the lower classes. The young generation of Hong Kong is trapped in a narrow social space, and with the indoctrination of some media, their vision is getting narrower and narrower, and they are gradually sinking into mental frenzy.

In addition, many Mainlanders still associate Hong Kong with Fok Yuen Gap 霍元甲 (1868-1910), Wong Fei Hung 黃飛鴻 (1847-1925), legendary martial artists depicted in many Hong Kong movies, and Hou Dejian’s 侯德健 (b. 1956) song "the heirs of the dragon 龍的傳人." They don’t know that in the "real world", many young people in Hong Kong no longer identify as "Chinese" and have even started to construct what they call a "Hong Kong people’s" identity, which has given rise to "Hong Kong independence" and "anti-China" movements. The "1997 reunification generation" is in danger of degenerating into the "umbrella revolution generation."
 
Time is passing, history is moving forward, and everyone's "imaginary worlds" and "real worlds" are in rapid change. In a sense, the NPC's Decision is actually a product of the intersection of these two worlds.
 
A Tale of Two Basic Laws: Between the "Imaginary World" and the "Real World”
 
The Basic Law is a constitutional law, subject to the Chinese national constitution, that empowers China’s central government to restore the exercise of sovereignty and governance in Hong Kong, and through the Basic Law, the central authorities have incorporated Hong Kong into the overall national constitutional system and national governance system.

However, many Hong Kong people first think of the Basic Law as a "defensive law," meaning that the purpose of the Basic Law is to restrain the power of the central authorities and prevent the central authorities from interfering in the affairs of Hong Kong, within the scope of the high degree of autonomy granted to the SAR. These two different understandings of the Basic Law ultimately led to various stories arising from the mutual misalignment between the "imaginary world" and the "real world" in the operation of the Basic Law.
 
The first story is about the interpretation of the Basic Law. In the "imaginary world" of most Mainland legal professionals, the Basic Law was enacted by the central authorities and is obviously part of the mainland legal system, and as a result they always follow the jurisprudential practices of the Mainland legal system in their understanding and use of the law.  However, in the "imaginary world" of the Hong Kong legal profession, the Basic Law is to be interpreted by the courts, and "the interpreters of the law are the real legislators," so they incorporate the Basic Law into the common law world, which is linked to Anglo-American traditions. Many foreign judges in Hong Kong came from the common law world of England and its former colonies, and most of the jurisprudence, articles, doctrines, and doctrines used in the interpretation of the courts came from the Western world.

After Hong Kong's retrocession, most of the provisions of the Basic Law have been systematically interpreted by Hong Kong courts in accordance with the common law, and it can be said that the Basic Law has been reconstructed using the common law approach and jurisprudence. In this regard, Professor Lau Siu-kai 劉兆佳 (b. 1947), Vice President of the National Association of Hong Kong and Macau Studies, has proposed the idea of "two Basic Laws," arguing that the Basic Law as interpreted by Hong Kong courts in "real-world" cases is completely different from the Basic Law written in legal texts as "imagined" by mainland scholars.
 
It is precisely because of the common law tradition of Hong Kong courts interpreting the law that many Hong Kong people see the courts as a bulwark, defending against, or even resisting, the "power of intervention" of the central government. This "defensive imagination" of the Basic Law is perfectly reflected in the Ng Ka Ling case 吳嘉玲案件.[3]  In its judgment of this case, the Hong Kong Court of Final Appeals went so far as to state that Hong Kong courts have the power to review whether an NPC decision is invalid because it violates the Basic Law.

However, after the central government criticized and rejected the case's ruling as a challenge to sovereignty, the Hong Kong High Court finally "affirmed" its acceptance of the Basic Law "real world:" the Basic Law is the law that ensures the restoration of the central government's exercise of sovereignty in Hong Kong in accordance with the law. If the CFA's "imagination" in the Ng Ka Ling case were to be followed, then today the people of Hong Kong could file a judicial review to ask the Hong Kong courts to rule on the question whether the NPC's Decision on Hong Kong's national security legislation is inconsistent with the Basic Law, and therefore invalid.
 
This "defensive imagination" of the Basic Law is also the basic reason that many people in the Hong Kong legal profession do not accept the NPC's “real world” interpretation of the Basic Law,” either because they think that the NPC's interpretation is not in line with the Sino-British Joint Declaration and thus invalid, or because they think that the power as written does not need to be used in practice, or because they think that the NPC's interpretation of the Basic Law, giving the legislature the power to interpret the law, is not in line with the common law tradition of the courts to interpret the law and therefore cannot be accepted, etc., etc.  However, after several NPC interpretations, the Hong Kong legal profession has gradually accepted and recognized the reality that the NPC interpretation is the Basic Law of the "real world."
 
The "aggressive (or offensive) imagination" and the "defensive imagination" of the Basic Law contradict one another. When the interpretation of the Basic Law by the NPC in the Ng Ka Ling case defeated the Hong Kong people's "defensive imagination" of the Basic Law, and proved that the Hong Kong courts could not be a bulwark against the central government's exercise of sovereignty in Hong Kong, the Hong Kong opposition changed its imagination of the Basic Law from a "negative defensive imagination" to a "positive defensive or even offensive imagination."

This is why the focus of their attention has shifted to the issue of Hong Kong's constitutional development. Through universal suffrage, they hope to take the governance of Hong Kong into their own hands, so that they can not only effectively defend themselves against the central government's exercise of sovereignty in Hong Kong, but also use Hong Kong as a base to launch an offensive attack on the Mainland, thereby changing the entire national constitutional system.
 
It is through this "aggressive imagination" of the Basic Law that some people in Hong Kong started to move away from passively defending against the NPC's interpretation of the Basic Law toward a very different path of actively fighting for universal suffrage. To this end, some members of the legal profession in Hong Kong came to imagine that the power of the central authorities and the high degree of autonomy of Hong Kong established by the Basic Law functioned as a federal model, and thus came to believe that the right to make decisions on Hong Kong's constitutional development is reserved to Hong Kong as a "residual power." 

In fact, the Basic Law is an important part of the constitutional system of the country, and the high degree of autonomy of the SAR originates from the authorization of the central authorities under the unitary structure of the country, and the power to make decisions on political development that the Basic Law fails to specify is reserved to the central government. The NPC's interpretation of the Basic Law on the issue of Hong Kong's constitutional development has undoubtedly shattered this "federalist imagination" of the Basic Law.
 
However, in the face of the opposition's aggressive posture on the need for a "timetable" and "roadmap" for universal suffrage, the central government had to make a decision as to when universal suffrage could be implemented in Hong Kong. Many people, based on the political ecology of Hong Kong, believed that the move toward universal suffrage should not occur too soon, and that it should at least be put off until the second half of the fifty-year period of autonomy.  However, the central authorities surpassed many people's expectations by taking an open-minded stance and confirming that universal suffrage for the Chief Executive and then for the Legislative Council could be implemented in 2017, during the first half of the 50-year period.

This decision was undoubtedly based on good intentions.  On the one hand, they believed that the SAR had become trapped in political disputes after the handover and was unable to solve increasingly serious economic and livelihood issues, and the central government hoped to solve the issue of political development as soon as possible, even expecting to reach a consensus and compromise with the opposition (as in the 2012 political reform package), so as to jointly turn the attention of Hong Kong society to economic and livelihood issues.  In addition, by 2017, China's economy would have developed even further, becoming more attractive to the Hong Kong community, which would help to win the hearts and minds of the people, so that moving toward universal suffrage would not endanger national security.
 
However, based on their "aggressive imagination" of the Basic Law, the opposition camp in Hong Kong came to believe that universal suffrage described in the Basic Law is not "genuine universal suffrage." In the name of fighting for this so-called "genuine universal suffrage," the opposition captured public opinion in Hong Kong and launched the illegal "Occupy Central" movement to realize its political dream of controlling Hong Kong governance through elections.

At this time, as 2017 drew nigh, China had become the world's second largest economy, but China’s rise did not win the trust of Hong Kong society in China’s central government as expected.  On the contrary, competition between the two economies meant that while China’s economy surged, Hong Kong’s suffered, creating the feeling in Hong Kong that things were out of balance, and nourishing local radical movements nostalgic for Hong Kong’s glory days as an international metropolis.

What was even more unexpected is that China’s rise led the United States to adjust its strategy towards China, and it began to constrain China in various ways. Taiwan and Hong Kong became two U.S. pawns in this effort, the "Sunflower Movement" and the "Umbrella Movement" occurring almost simultaneously, and the forces of "Taiwan independence" "Hong Kong independence" flowed together. The opposition in Hong Kong was trying to seize the right of governance through color revolutions and riots to achieve the political goal of "independent statehood" and even to remove Chinese state sovereignty from Hong Kong.
 
From this we can see that, since 2003, Hong Kong has evolved from demonstrations, social movements, and referendums on universal suffrage to the "Umbrella Revolution" and violent attempts to seize of power, with the opposition launching wave after wave of increasingly aggressive attacks, making it difficult to realize the central government's attempt to implement universal suffrage in Hong Kong to promote the development of the economy and people’s livelihood development in Hong Kong.

The issue of Hong Kong is no longer a question of the economy and people’s livelihood, nor is it a matter of development of the political system. Instead, it has become a fundamental issue of whether or not we can defend national sovereignty and security. The national security legislation is the direct result of the interplay of “offensive” and “defensive” understandings of the Basic Law, as well as the misfit between the “imagined” and “real” worlds of universal suffrage in Hong Kong.
 
Two Stories of Hong Kong's National Security Law: Between "Imagination" and "Reality"
 
Hong Kong's national security legislation has always been intertwined with Hong Kong's political development, because the core dispute over the development of Hong Kong's political system actually revolves around the right to govern Hong Kong, and this issue necessarily involves fundamental questions of sovereignty. On this issue, "one country, two systems" has always contained an inner tension.
 
The Basic Law is the institutionalization and legalization of the central government's policy towards Hong Kong as set out in the Sino-British Joint Declaration, signed in December, 1984. However, if you look at the central government’s policies on Hong Kong as expressed in that document, there is no policy promise of "universal suffrage" for the election of the Chief Executive or the Legislative Council. In 1992, in violation of the Sino-British Joint Declaration and in spite of strong opposition from China, Hong Kong’s "last Governor" Chris Patten (b. 1944) unilaterally announced his political reform package four months after taking office, suddenly launched democratic reforms in Hong Kong, causing an uproar. At the outset, the provisions of the draft Basic Law on how to elect the Chief Executive and the Legislative Council were left blank because no consensus could be reached.

On the question of Hong Kong, the central government wanted "retrocession" while Hong Kong wanted "democracy," which made consensus difficult. Later, the moderate and pan-democratic camps in Hong Kong put forward the political idea of "democratic reunification" in an attempt to satisfy both Hong Kong's democratic aspirations and the central authorities' idea of retrocession, and some Hong Kong people came to be trapped in imaginary notion that the Basic Law was about "democratization.”
 
However, Deng Xiaoping was keenly aware of the problems encountered in the drafting of the Basic Law, and made a series of important speeches, highlighting the relationship between the central authorities and the SAR, the relationship between democratic universal suffrage and national security, and pointing out the direction in which work on Hong Kong should proceed. For example, he believed that the political system of Hong Kong should not be based on a tripartite separation of powers; that universal suffrage might not necessarily result in the election of a Chief Executive loyal to both Hong Kong and the central government; and that the central authorities must intervene if something were to occur in Hong Kong that endangered national security.

It was under this guidance that the issue of national security legislation first appeared in the draft Basic Law. The first few drafts only stipulated the prohibition of acts that undermine national unity and subvert the central government. Later, considerable modifications were made, especially when the opposition in Hong Kong involved itself deeply in the 1989 political turmoil, which highlighted the importance and urgency of safeguarding national security in Hong Kong.

​It should be noted that during the discussions on the drafting of the Basic Law, the idea of having the central authorities directly enact national security laws and add them to Annex III of the Basic Law for implementation in Hong Kong had been raised. In other words, the NPC's recent Decision had already appeared in the drafting process of the Basic Law, and what was “imagined” at that point became the reality of national security law some decades later.
 
After the retrocession of Hong Kong, the gap that Article 23[4] left in the Basic Law still needed to be filled, and in 2003, the SAR government began to work on it. As the Hong Kong community was very sensitive to the central government's direct exercise of power in Hong Kong during the early years of the handover, the "real world" of Article 23 came to be completely different from the "imagination" of the original design.  There were many technical flaws in what the SAR government proposed, and the legal profession was particularly opposed to it.  In addition, the SARS epidemic suddenly caused a governance crisis and the community reacted more strongly than expected, bringing about the failure of the Article 23 legislation. 

This failure had a profound impact on Hong Kong politics, and the opposition's understanding of the Basic Law shifted from a "defensive” to an "offensive" posture, and they subsequently planned and launched a series of so-called "genuine universal suffrage" campaigns. Against this backdrop, the Article 23 legislation was shelved yet again. In the absence of the national security red lines Article 23 would have furnished, the political movement in Hong Kong gradually degenerated, directly impacting fundamental considerations of national sovereignty and security, forcing the central government to adopt the stance of "great chaos requires strong measures" and to take the initiative to assume the constitutional responsibility of national security legislation.
 
In the first story, national security legislation was triggered by the issue of political development, and in the second story, national security legislation in turn stimulated the issue of political development, and the two issues were always intertwined. In fact, when the SAR government failed in its efforts to pass Article 23, there was a chance to seize the initiative when the NPC decided to give Hong Kong a timetable for universal suffrage. On the issue of universal suffrage, many people in Hong Kong argued that Article 23 should be passed before the implementation of universal suffrage. Without Article 23, a hasty move toward universal suffrage would inevitably endanger national security.

If the 2007 NPC decision had explicitly stipulated that universal suffrage for the Chief Executive and the Legislative Council could be implemented in Hong Kong in a gradual and orderly fashion on the condition that Article 23 was passed, then we might have been able to shift from a passive to a proactive approach on issues of political development and national security. What would Hong Kong be like today if things had worked out this way? Of course, there are no “ifs” in history, and all of this is merely my own post facto “imagination.” We must return to the "real world" and focus on the NPC's implementation of national security legislation in Hong Kong.
 
Notes
 
[1] 強世功, “穿行於"想象世界"與"真實世界"理解香港國家安全立法的內在法理,” published in Bauhinia Magazine on June 1, 2020.  I am unable to locate the original text on the magazine’s website but a version is available here.        

[2]  Translator’s note:  This is a reference to a television show and its popular theme song.

[3]  Translator’s note:  Ng Ka-ling was born in Mainland China to Hong Kong parents.  After the retrocession of Hong Kong, the relevant laws were changed, according people like Ng the right of abode in Hong Kong.  The process, however, was complicated, as Mainland authorities had to verify the claims of such applicants and issue a one-way permit, allowing them to sacrifice their Mainland residence permit and enter Hong Kong.  Ng Ka-ling entered Hong Kong illegally, in the sense that she did not have the required one-way permit.  She subsequently sued, on the grounds that her right to abode by virtue of her birth to Hong Kong parents superseded the administrative procedures put in place by the Mainland authorities.  The Hong Kong courts agreed on the basis of their common law practices, highlighting the basic contradiction between legal practices and legal reasoning in Hong Kong and on the Mainland.  Click here for a brief explanation in Chinese.

​[4]  Translator’s note:  Article 23 stated that the SAR "shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies."