As protests against China’s laws continue, Hong Kong’s pro-democracy lawmakers resign after new disqualification legislation. The security law’s compatibility with the rule of law will determine whether UKSC Judges will keep serving in Hong Kong.
2019 Hong Kong protest, the Tsuen Wan March, 25 August, 2019. (Studio Incendo, CC BY 2.0 <https://creativecommons.org/licenses/by/2.0>, via Wikimedia Commons)
Understanding Hong Kong’s history is essential when considering its current relations with China. In 1842, China gave up Hong Kong Island to the UK, after its defeat in the First Opium War, and in 1898, China leased the New Territories along with more than 200 islands to the UK for 99 years. As time went by, Hong Kong’s economy and living conditions began to ameliorate.
In 1992, the UK and China signed a Joint Declaration, affirming that in 1997, once given back to China, Hong Kong will remain independent and capitalist for 50 years. In 1997, an agreement was made which stipulated that the House of Lords (now the Supreme Court) would provide 2 UK Law Lords to sit on the Hong Kong Court of Final Appeal, which was done to satisfy the UK’s ambition of protecting Hong Kong’s rule of law.
However, there have been clashes between China and Hong Kong after the British handover. In the early 2000s, laws began to emerge limiting Hong Kong’s independence. From 2003, large-scale mass demonstrations and marches began against laws such as Article 23, rulings against universal suffrage, climates of ‘fear’, freedom of speech, and crackdowns on democracy. The protests and rallies only increased once the LegCo (Legislative Council, which makes and amends Hong Kong’s laws) began disqualifying and simply removing pro-independence legislators. Such protests against laws and LegCo’s actions continue today.
Police authorities in mainland China started to intensify their control in Hong Kong, after an escalation of mass demonstrations in 2019. In June 2020, Hong Kong’s National Security Law came into effect, which criminalises acts such as that of ‘subversion’. This Security Law is controversial due to its ambiguity: the less detailed it is, the more widely it can be interpreted and applied to any case, the more power it gives to China’s government to incriminate innocent people.
The latest controversy was the introduction by Beijing of new laws that allow elected pro-independence lawmakers to be disqualified from the Council. The law can remove pro-independence politicians if what they say could be a ‘threat’ to China’s security. In fact four pro-independence members were disqualified, encouraging fifteen more to resign to show solidarity.
Lord Reed, President of the UKSC, is the only serving judge since Lady Hale retired. Lady Hale was not replaced, and no UK judge has been scheduled to sit in Hong Kong. Recognising the controversy and the concerns with the new security law, Lord Reed stated that the law must be observed once applied, and that the judges of the Court of Final Appeal will do their “utmost to uphold the guarantee in Article 85 of the Hong Kong Basic Law that “the Courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference.”
Judicial Independence is vital for an operating democracy, ensuring that citizens of a country are treated justly. This is the reason why, without it, the legal system in China loses all credibility and fairness towards the citizens. Also, Dominic Raab, the UK’s Foreign Secretary, claimed that, "Beijing's imposition of new rules to disqualify elected legislators in Hong Kong constitutes a clear breach of the legally binding Sino-British Joint Declaration. China has once again broken its promises and undermined Hong Kong's high degree of autonomy.” The UK Government will make the decision on whether UK judges can sit in the Hong Kong courts. This decision will depend on how the security law develops and whether the security law is compatible with the rule of law.
LegCo is now made up of 43 members, with only 2 pro-democracy members left. Beijing and Hong Kong’s Government uphold their stance claiming the disqualifications were lawful. Although it is true that the resignations may provide a symbolic message, in reality with only 2 pro-democracy members left in the Council, there will be no compelling opposition left to confront the government.
If the 15 pro-independence members from Hong Kong’s Legislative Council (who resigned to show solidarity with the 4 members that had been disqualified) had not resigned; would they have been removed from the Council? With less pro-independence legislators, the spotlight now shifts to the people, who will have to keep fighting this battle. The resignation was also what brought the world’s attention to this matter, which resulted in the UK, US, and EU giving their support for Hong Kong, and putting pressure on China.
The future of Hong Kong’s democracy may be ambiguous, but optimism remains. As Ms. Mo said in her op-ed in Apple Daily before resigning, "We may be quitting the legislature at this point of time but we're not quitting the democracy fight."
By Giorgia Santulli Sanzo, student of LLB Global Law at Queen Mary University of London