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The Hong Kong National Security Law and the Struggle over Rule of Law and Democracy in Hong Kong

Published online by Cambridge University Press:  01 January 2025

Surabhi Chopra Open the ORCID record for Surabhi Chopra [Opens in a new window]  and
Eva Pils
Surabhi Chopra*
Affiliation:
Faculty of Law, Chinese University of Hong Kong
Eva Pils*
Affiliation:
King’s College London; Affiliate Researcher at the NYU US — Asia Law Institute
*
The author may be contacted at surabhic@cuhk.edu.hk
The author may be contacted at surabhic@cuhk.edu.hk
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Abstract

In this article, we examine the controversial national security law enacted by the People’s Republic of China for the Hong Kong Special Administrative Region in June 2020 and consider how this law interacts with two constitutional struggles that Hong Kong has experienced since its return to Chinese sovereignty in 1997. The first of these is a struggle over preserving rule of law principles protected in Hong Kong’s regional constitution, the Hong Kong Basic Law and international treaty obligations. The second is a struggle for democratisation, pursuant to constitutional commitments in the Basic Law. We argue that the national security law severely damages Hong Kong’s much-vaunted rule of law, as well as its ability to govern itself as a (relatively) liberal-democratic enclave within China. It muffles contestation over rule of law and democratic principles through facilitating rule by fear as a key modality of governance. The national security law expands the state’s coercive powers, and has the capacity to intimidate well beyond the letter of its provisions by creating rules and mechanisms to suspend legal protections altogether. Its provisions serve to reinscribe political discourse that has long been mainstream in Hong Kong as deviant. But at least as much as the NSL’s actual provisions, it is the loss of judicial scrutiny and the possibility of being transitioned into the Mainland legal system that operationalise rule by fear.

Type
Special Issue (Part 2): Constitutional Struggles in Asia
Information
Federal Law Review , Volume 50 , Issue 3: Special Issue (Part 2): Constitutional Struggles in Asia , September 2022 , pp. 292 - 313
Copyright
Copyright © 2022 The Author(s)

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References

1. The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (‘National Security Law’ or ‘NSL’), LN 136 of 2020, B2345 (in Chinese) (‘National Security Law’ or ‘NSL’); an unofficial translation is available at <https://www.gld.gov.hk/egazette/pdf/20202448e/egn2020244872.pdf>.

2. Eric Lai, Jeremy Huai-Che Chiang and Henry Litton, ‘Ask the Experts: Has Democracy in Hong Kong Come to an End?’, London School of Economics Blog (Blog Post, 26 May 2021) <https://blogs.lse.ac.uk/cff/2021/05/26/ask-the-experts-has-democracy-in-hong-kong-come-to-an-end/>.

3. Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, signed 19 December 1984, 1399 UNTS 33 (entered into force 27 May 1985) <https://www.cmab.gov.hk/en/issues/jd2.htm>.

4. Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (‘Basic Law’).

5. Basic Law (n 4) art 8, art 19(1), art 85, art 87.

6. Ibid arts 24–33, arts 34–6, art 37–9.

7. International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, (entered into force 23 March 1976) (‘ICCPR’).

8. Basic Law (n 4) art 39, which provides that the ICCPR, in addition to other international human rights treaties, ‘as applied to Hong Kong’, shall be implemented through the region’s law.

9. Ibid art 158.

10. Ibid art 19(1), art 82.

11. Ibid art 45, art 68.

12. 〈〈中华人民共和国宪法〉〉 [Constitution of the People's Republic of China] art 1, art 3, <https://npcobserver.com/2018/03/11/translation-2018-amendment-to-the-p-r-c-constitution/≥ (‘Constitution’).

13. Basic Law (n 4) art 18.

14. Ibid art 158(1).

15. Constitution (People's Republic of China) (n 12) art 5.

16. Eva Pils, ‘The Party and the Law’, in Willy Lam (ed), Handbook on the Chinese Communist Party (Routledge, 2018).

17. See, eg, Andrew Scobell, ‘Hong Kong’s Influence on China: The Tail That Wags the Dog?’ (1988) 28(6) Asian Survey 599.

18. Ng Ka Ling v Director of Immigration [1999] 1 HKLRD 315 (Li CJ).

19. Ibid 337.

20. The Interpretation of the Standing Committee of the National People’s Congress of Articles 22(4) And 24(2)(3) of the Basic Law of The Hong Kong Special Administrative Region of the People's Republic of China, Instrument A106, 26 June 1999 <https://www.elegislation.gov.hk/hk/A106!en.assist.pdf>.

21. Gary Cheung and Chris Ip, ‘All city’s top judges “considered quitting”’, South China Morning Post (online), 8 September 2011 <http://www.scmp.com/article/978391/all-citys-top-judges-considered-quitting>.

22. See, eg, Johannes M M Chan, ‘A Shrinking Space: A Dynamic Relationship between the Judiciary in a Liberal Society of Hong Kong and a Socialist-Leninist Sovereign State’ (2019) 72(1) Current Legal Problems 85, 95–8.

23. Basic Law (n 4) art 23; National Security (Legislative Provisions) Bill 2003 <https://www.basiclaw23.gov.hk/english/download/s3200307077.pdf>.

24. Carole J Petersen, ‘Hong Kong’s Spring of Discontent: The Rise and Fall of the National Security Bill in 2003’ in Fu Hualing, Carole J Petersen and Simon N M Young (eds), National Security and Fundamental Freedoms Hong Kong’s Article 23 Under Scrutiny (Hong Kong University Press, 2005) 19–20.

25. Ibid 46–53.

26. Basic Law (n 4) art 45, art 68.

27. Between 1997 to June 2010, the election committee for the Chief Executive had 800 members. This was increased to 1200 members in 2010 when political reforms permitted by the NPCSC garnered the two-thirds Legislative Council supermajority necessary to pass.

28. Government of the Hong Kong Special Administrative Region, ‘Voter Registration Statistics’, Voter Registration (Web Page, 8 February 2022) <Voter Registration — Voter Registration Statistics>.

29. Basic Law (n 4) Annex I (repealed and replaced in April 2021); for a concise analysis of this system, see Cora Chan, ‘Legalizing Politics: An Evaluation of Hong Kong’s Recent Attempt at Democratization’ (2017) 16(2) Election Law Journal 296, 300–2.

30. Benny Tai, ‘The Chief Executive’ in Johannes Chan and C L Lim (eds), Law of the Hong Kong Constitution (Thomas Reuters, 2015), 7.026–7.098 [online edition].

31. See, eg, Ngok Ma, Political Development in Hong Kong: State, Political Society, and Civil Society (Hong Kong University Press, 2007), 117–33.

32. Simon N M Young and Anthony Law, Privileged to Vote: Inequalities and Anomalies of the FC System (Civic Exchange, 2004), 59–110; Ma (n 31) 142–5.

33. Constitutional and Mainland Affairs Bureau, Consultation Document on the Methods for Selecting the Chief Executive and for Forming the Legislative Council in 2012, (Government of the Hong Kong S.A.R. 2012), 4; Constitutional Development Task Force, The Fourth Report of the Constitutional Development Task Force, (Government of the Hong Kong S.A.R. 2012), 7. See also ‘Hong Kong democracy ‘referendum’ draws nearly 800 000’, BBC (online), 30 June 2014 <https://www.bbc.com/news/world-asia-china-28076566>.

34. Albert Chen, ‘Development of Representative Government’ in Johannes Chan and C L Lim (eds), Law of the Hong Kong Constitution (Thomas Reuters, 2015), 8.059–8.078, 8.090–8.098 [online edition].

35. Basic Law (n 4), Annex I and Annex II (amended by the NPCSC on 30 March 2021).

36. Interpretation by the Standing Committee of the National People's Congress of Article 7 of Annex 1 and Article III of Annex 2 to the Basic Law of the Hong Kong Special Administrative Region of the Peoples' Republic of China, Instrument A107, 6 April 2004.

37. Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region in 2007 and for Forming the Legislating Council of the Hong Kong Special Administrative Region in 2008 NPCSC, 26 April 2004; Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2012 and on Issues Relating to Universal Suffrage NPCSC, 29 December 2007; Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016 NPCSC, 31 August 2014. For a discussion of these decisions, see Swati Jhaveri, ‘Reconstitutionalizing Politics in the Hong Kong Special Administrative Region of China’ (2018) 13(1) Asian Journal of Comparative Law 27, 30–3.

38. For a brief analysis, see Chan (n 29) 301–5.

39. Samson Yuen and Edmund W Cheng, ‘Neither Repression nor Concession? A Regime’s Attrition against Mass Protests’ (2017) 65(3) Political Studies 611, 614–15.

40. Samson Yuen, ‘From Repression to Attrition: State Responses towards the Umbrella Movement’ in Ngok Ma and Edmund Cheng (eds), The Umbrella Movement (Project Muse, 2019) 185, 199–201.

41. Donny Kwok and Yimou Lee, ‘Hong Kong vetoes China-backed electoral reform proposal’, Reuters (online), 18 June 2015 <https://www.reuters.com/article/us-hongkong-politics-idUSKBN0OY06320150618>.

42. Anti-Extradition Law Amendment Bill, which proposed to amend the Fugitive Offenders Ordinance (Hong Kong) cap 503.

43. Francis Lee et al, ‘Hong Kong’s Summer of Uprising: From Anti-Extradition to Anti-Authoritarian Protests’, (2019) 19(4) China Review 1, 16–18.

44. Michael Forsythe and Alan Wong, ‘Bookseller’s Account of Abduction Rekindles Fear of Lost Rights in Hong Kong’, New York Times (online), 17 June 2016 <https://www.nytimes.com/2016/06/18/world/asia/hong-kong-bookseller-lam-wing-kee.html>.

45. Surabhi Chopra, ‘Yau Wai Ching v Chief Executive of HKSAR: A Landmark Blow to Liberal Constitutionalism (Symposium on Constitutional Landmark Judgments in Asia)’, IACL-AIDC Blog, (Blog Post 15 December 2020). See Interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, Instrument A115, 7 November 2016.

46. ‘“Nearly 2 million” people take to streets, forcing public apology from Hong Kong leader Carrie Lam as suspension of controversial extradition bill fails to appease protesters’, South China Morning Post (online), 17 June 2019 <https://www.scmp.com/news/hong-kong/politics/article/3014737/nearly-2-million-people-take-streets-forcing-public-apology>.

47. Francis L F Lee et al (n 43).

48. Margaret Ng, ‘The Legislature as a ‘Vetogate’’ in Cora Chan and Fiona De Londras (eds), China’s National Security: Endangering Hong Kong’s Rule of Law? (Hart, 2020) 168–76.

49. Isabella Steger, ‘Two years later, the last of the vanished Hong Kong booksellers has been “freed” in China’, Quartz (online), 24 October 2017 <https://tinyurl.com/sjznfdb9>.

50. Jhaveri (n 37) 40–8.

51. For scholarly discussion, see Francis LF Lee, Michael Chan and Husan-Ting Chen, ‘Social Media and Protest Attitudes During Movement Abeyance: A Study of Hong Kong University Students’ (2020) 14 International Journal of Communication 4932; Luwei Rose Luqiu and Shuning Lu, ‘Bounded or Boundless: A Case Study of Foreign Correspondents’ Use of Twitter During the 2019 Hong Kong Protests’ (2021) 7(1) Social Media + Society doi: 10.1177/2056305121990637: 1–10; Sylvia Frosina, ‘Digital Revolution: How Social Media Shaped the 2019 Hong Kong Protests’, Italian Institute for International Political Studies (Blog Post, 9 June 2021) <https://www.ispionline.it/en/pubblicazione/digital-revolution-how-social-media-shaped-2019-hong-kong-protests-30756>. For reportage, see Grace Shao, ‘Social media has become a battleground in Hong Kong’s protests’, CNBC (Web Page, 15 August 2019) <https://www.cnbc.com/2019/08/16/social-media-has-become-a-battleground-in-hong-kongs-protests.html>; Danny Mok, ‘The doxxing and the duelling’ in Jeffie Lam and Zuraidah Ibrahim (eds), Rebel City: Hong Kong’s Year of Water and Fire (South China Morning Post, 2020) 313–19.

52. Yuen (n 40).

53. See, eg, Ng (n 48).

54. Sebastian Veg, ‘Creating a Textual Public Space: Slogans and Texts from the Umbrella Movement’ in Ngok Ma and Edmund W Cheng (eds), The Umbrella Movement: Civil Resistance and Contentious Space in Hong Kong (Amsterdam University Press, rev ed, 2020) 149.

55. Jeffie Lam and Zuraidah Ibrahim (eds), Rebel City: Hong Kong’s Year of Water and Fire (South China Morning Post, 2020) 53–191.

56. Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security, 28 May 2020 <https://www.legco.gov.hk/yr19-20/english/panels/se/papers/ajlscase20200707-ln135-e.pdf>.

57. Promulgation of National Law 2020, LN 136 of 2020, B2345.

58. Basic Law (n 4) art 18.

59. Ibid art 18(2), 18(3).

60. Ibid art 18(4).

61. Ibid.

62. Ibid.

63. Ibid art 18.

64. For a detailed analysis of constitutionality, see Cora Chan, ‘Can Hong Kong Remain a Liberal Enclave Within China? Analysis of the Hong Kong National Security Law’ (2021) Public Law 271, 272–5.

65. NSL (n 1) art 20, 21.

66. Ibid art 22, 23.

67. Ibid art 29, 30.

68. Ibid art 24, 25, 26, 27.

69. United Nations (Anti-Terrorism Measures) Ordinance (Hong Kong) cap 575.

70. NSL (n 1) art 24.

71. Ibid art 22.

72. Ibid art 22.

73. Ibid art 22 (emphasis added).

74. Ibid.

75. Ibid art 29.

76. Ibid (emphasis added).

77. Ibid.

78. Ibid art 30.

79. Ibid art 35.

80. Ibid art 16, 17, 18, 43(1).

81. Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (Hong Kong) LN 139 of 2020, B2397 schs 1–3 (‘Implementation Rules’).

82. NSL (n 1) art 44.

83. Ibid art 46.

84. Criminal Procedure Ordinance (Hong Kong) cap 221, s 41(2).

85. Tong Ying Kit v Secretary for Justice [2021] HKCFI 1397 [24].

86. Ibid.

87. Tong Ying Kit v Secretary for Justice [2021] HKCA 912.

88. NSL (n 1) art 41.

89. Ibid.

90. Ibid art 42 (emphasis added).

91. Ibid art 55.

92. Ibid.

93. Ibid arts 56–7.

94. NSL (n 1) art 15.

95. Ibid arts 12–13.

96. Ibid art 48.

97. Ibid arts 49–51.

98. Ibid arts 60, 37.

99. Ibid art 38.

100. Hong Kong Bill of Rights Ordinance (Hong Kong) cap 383.

101. HKSAR v Lai Chee Ying (2021) HKCFA 3, [36]–[37] (‘Lai Chee Ying’).

102. Lau Kong Yung & Others v Director of Immigration (1999) 2 HKCFAR 300, 323B–C.

103. The correlated principle ‘who enacts, reviews’ [谁制定谁审] is discussed, for example, in Wang Zhenmin, ([王振民]), 中国违宪审查制度 [Constitutional Review in China] (Chinese University of Politics and Law Press, 2004).

104. NSL (n 1) art 1.

105. Lai Chee Ying (n 101) [34]–[37].

106. Ibid [37].

107. Basic Law (n 4) art 159.

108. See Interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, Instrument A115, 7 November 2016.

109. Chief Executive of HKSAR v President of Legislative Council [2016] HKEC 2487.

110. Carole J Petersen, ‘The Disappearing Firewall: International Consequences of Beijing’s Decision to Impose a NSL and Operate National Security Institutions in Hong Kong’ (2020) 50 Hong Kong Law Journal 633, 656.

111. NSL (n 1) arts 14, 60.

112. Koo Sze Yiu v Chief Executive of HKSAR [2006] 3 HKLRD 455.

113. Implementation Rules (n 81) sch 6.

114. Ibid s 13.

115. NSL (n 1) art 60.

116. Ibid.

117. Eva Pils, Human Rights in China: A Social Practice in the Shadows of Authoritarianism (Polity Press, 2018).

118. Chan (n 64) 286–87; see also Swati Jhaveri, ‘Administrative Law as a Modest Guardian of the Rule of Law’ in Cora Chan and Fiona De Londras (eds), China’s National Security: Endangering Hong Kong’s Rule of Law? (Hart Publishing, 2020) 113–32.

119. Implementation Rules (n 82).

120. Brian Wong, ‘Judges in Hong Kong’s first national security law trial rule that ‘great harm to society’ must be proven to secure terrorism conviction’, South China Morning Post (online), 29 April 2021 <https://www.scmp.com/news/hong-kong/law-and-crime/article/3131658/judges-hong-kongs-first-national-security-law-trial>.

121. Lai Chee Ying (n 101) [70].

122. Jasmine Siu and Nadia Lam, ‘Hong Kong national security law: bail blow for another defendant in city’s largest prosecution under Beijing-imposed legislation, others drop their bids’, South China Morning Post (online), 19 March 2021 <https://www.scmp.com/news/hong-kong/law-and-crime/article/3126085/hong-kong-national-security-law-bail-blow-another>.

123. Candice Chau, ‘Hong Kong court denies bail to 3 student leaders charged under national security law with ‘advocating terrorism’, Hong Kong Free Press (online), 19 August 2021 <https://hongkongfp.com/2021/08/19/hong-kong-court-denies-bail-to-3-student-leaders-charged-under-national-security-law-with-advocating-terrorism/>.

124. Candice Chau, ‘Hong Kong Tiananmen Massacre vigil group leader denied bail over “inciting subversion” national security charge’, Hong Kong Free Press (online), 10 September 2021 <https://hongkongfp.com/2021/09/10/hong-kong-tiananmen-massacre-vigil-group-leader-denied-bail-over-inciting-subversion-national-security-charge/>.

125. ‘National security suspect’s jury trial bid rejected’, RTHK (online), 20 May 2021 <https://news.rthk.hk/rthk/en/component/k2/1591783-20210520.htm>.

126. Tong Ying Kit v Secretary for Justice [2021] HKCFI 1397, [36]–[42].

127. Ibid 912.

128. As the United Nations Human Rights Council has noted, freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress and development (see Human Rights Council, Safety of Journalists, Human Rights Council Resolution 21/12, UN GAOR, 21st sess, 37th mtg, Agenda Item 3, Supp No 53A, UN Doc A/HRC/RES/21/2, (27 September 2012)). On the inherent connections between the four rights mentioned here, see, eg, Kevin Boyle and Sangeeta Shah, ‘Thought, Expression, Association, and Assembly’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law (Oxford University Press, 2014) 257.

129. See Ng (n 48).

130. Lydia Wong and Thomas Kellogg, Hong Kong’s NSL: A Human Rights and Rule of Law Analysis (Report, Georgetown Centre for Asian Law, February 2021) 28–9.

131. This includes arrests made for offences under the NSL and arrests made for non-NSL offences by the NSL-created National Security Division of the Hong Kong police.

132. Wong and Kellogg (n 130) 29, 66–70.

133. Ibid 3738.

134. Nicolle Liu and Yuan Yang, ‘Hong Kong pro-democracy groups disband after security law passed’, Financial Times (online), 30 June 2020 <https://www.ft.com/content/28aa95f9-e3b1-4b00-b25f-8de3d349f660>.

135. Chan Ho-him, ‘Hong Kong’s largest opposition trade union confirms disbandment, expects to fold by early October’, South China Morning Post (online) 15 August 2021 <https://www.scmp.com/news/hong-kong/politics/article/3149319/hong-kongs-largest-opposition-trade-union-confirms>; Chan Ho-Him and Ng Kang-chung, ‘Hong Kong’s biggest teachers’ union drops political bombshell, announcing its disbandment after authorities cut ties’, South China Morning Post (online), 10 August 2021 <https://www.scmp.com/news/hong-kong/politics/article/3144518/hong-kongs-biggest-teachers-union-set-disband-after>; Jeffie Lam, ‘Hong Kong protests: as Civil Human Rights Front folds, police and Beijing warn legal troubles far from over’, South China Morning Post (online), 15 August 2021 <https://www.scmp.com/news/hong-kong/politics/article/3145093/hong-kong-protests-civil-human-rights-front-confirms-it>.

136. See, eg, ‘China is killing academic freedom in Hong Kong’, The Economist (online), 23 August 2020 <https://www.economist.com/china/2020/08/23/china-is-killing-academic-freedom-in-hong-kong>; Lucy Craymer, ‘Hong Kong University Fires Democracy Advocate as China Clamps Down’, Wall Street Journal (online), 28 July 2020 <https://www.wsj.com/articles/hong-kong-university-fires-democracy-advocate-as-china-clamps-down-11595954251>.

137. Chan Ho-him, ‘Will national security law force exodus of Hong Kong’s teachers, students over fears of shrinking academic freedom?’ South China Morning Post (online), 23 April 2021 <https://www.scmp.com/news/hong-kong/education/article/3130660/will-national-security-law-force-exodus-hong-kongs>.

138. Ibid. See also The Economist (n 136) and Craymer (n 136).

139. NSL (n 1) art 31.

140. Ibid.

141. Wong and Kellogg (n 130) 29.

142. Rhoda Kwan, ‘Social media messages from Hong Kong democrat Claudia Mo to int’l media “a threat to national security”’, Hong Kong Free Press (online), 28 May 2021 <https://hongkongfp.com/2021/05/28/social-media-messages-from-hong-kong-democrat-claudia-mo-to-intl-media-a-threat-to-national-security/>.

143. In response to a question in the Legislative Council, Secretary for Security John Lee stated, inter alia, that ‘the Police will actively investigate and pursue their legal liabilities under the existing legal framework’ against ‘any person (including foreign politicians) … suspected of having committed the crime for organising, planning or aiding the abscondence’: Hong Kong, Parliamentary Debates, Legislative Council, 6 January 2021, 14:00 (Secretary for Security John Lee). It is important to note that the discussion pertained to the possibility of prosecution under the Criminal Procedure Ordinance (Hong Kong) cap 221 rather than the NSL.

144. Violet Wong, ‘We won’t let arts undermine security: Carrie Lam’, RTHK (online), 17 March 2021 <https://news.rthk.hk/rthk/en/component/k2/1581040-20210317.htm>.

145. For a factual account, see Kelly Ho, ‘Hong Kong barristers urge minister to defend judges against ‘virulent’ attack by state-owned newspaper’, Hong Kong Free Press (online), 24 November 2020 <https://hongkongfp.com/2020/11/24/hong-kong-barristers-urge-minister-to-defend-judges-against-virulent-attack-by-state-owned-newspaper/>.

146. ‘Hong Kong leader says govt could intervene in Bar Association if necessary’, Reuters (online), 27 April 2021 <https://www.reuters.com/world/asia-pacific/hong-kong-leader-says-govt-could-intervene-bar-association-if-necessary-2021-04-27/>.

147. Natalie Wong et al, ‘Hong Kong national security law: 53 former opposition lawmakers, activists arrested; authorities accuse them of plot to ‘overthrow’ government’, South China Morning Post (online), 6 January 2021 <https://www.scmp.com/news/hong-kong/law-and-crime/article/3116573/dozens-hong-kong-opposition-lawmakers-activists>.

148. Yanni Chow and Yoyo Chow, ‘Hong Kong arrests 53 for plot to ‘overthrow’ government in latest crackdown on dissent’, Reuters (online), 5 January 2021 <https://www.reuters.com/article/us-hongkong-security-idCAKBN29B01K>.

149. Decision of the Standing Committee of the National People's Congress on Issues Relating to the Qualification of the Members of the Legislative Council of the Hong Kong Special Administrative Region, Instrument 29, 11 November 2020.

150. Government of Hong Kong SAR, ‘HKSAR Government announces disqualification of legislators concerned in accordance with NPCSC’s decision on qualification of HKSAR legislators’, (online), 11 November 2020 <https://www.info.gov.hk/gia/general/202011/11/P2020111100779.htm>.

151. Tony Chueng and Jeffie Lam, ‘Mass resignation of Hong Kong opposition lawmakers after Beijing rules on disqualification’, South China Morning Post (online), 11 November 2020 <https://www.scmp.com/news/hong-kong/politics/article/3109454/mass-resignation-hong-kong-opposition-lawmakers-after>.

152. Decision of the National People’s Congress on Improving the Electoral System of the Hong Kong Special Administrative Region, Instrument 30, 11 March 2021 <https://www.basiclaw.gov.hk/filemanager/content/en/files/basiclawtext/basiclawtext_doc31.pdf> (‘Electoral System Decision’).

153. Improving Electoral System (Consolidated Amendments) Ordinance 2021 (Hong Kong).

154. Benny Tai, ‘The Chief Executive’ in Johannes Chan and C L Lim (eds), The Law of the Hong Kong Constitution (Sweet and Maxwell 2021), 7.013–7.098.

155. The 1200-member Election Committee comprised four 300-member sectors, which were in turn elected by various sub-sectors. A new 300-member sector has been added to the Election Committee, which includes members of five designated national organisations, National People’s Congress delegates, as well as members of the Chinese People’s Political Consultative Conference (CPPCC), the country’s highest political advisory body: See Electoral System Decision (n 152) art 2.

156. Electoral System Decision (n 152) art 4.

157. Decision of the Standing Committee of the National People's Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2012 and on Issues Relating to Universal Suffrage, Instrument 19, 29 December 2007, art 1.

158. Basic Law (n 4), art 8, annex II, as amended at the Twenty-Seventh Meeting of the Standing Committee of the Thirteenth National People’s Congress on 30 March 2021. Candidates for a geographical constituency ‘shall be nominated by at least 100 but no more than 200 voters for the geographical constituency as well as at least 2 but no more than 4 members from each sector of the Election Committee’.

159. See, for example, Ma (n 31), 117–33.

160. Basic Law (n 4) art 1, Annex II, as amended at the Twenty-Seventh Meeting of the Standing Committee of the Thirteenth National People’s Congress on 30 March 2021.

161. Electoral System Decision (n 152) art 5; Improving Electoral System (Consolidated Amendments) Ordinance 2021 (n 153), s 269(5).

162. Basic Law (n 4), art 5, annex II, as amended and effective 31 May 2021.

163. Ibid.

164. Basic Law (n 4) art 5, annex II as amended and effective 31 May 2021; Improving Electoral System (Consolidated Amendments) Ordinance 2021 (n 153) s 271, which inserts Section 3B into the Legislative Council Ordinance (Hong Kong) cap 542.

165. See, eg, Kwok Wai Fun, Franco (Returning Officer for The Kowloon West Geographical Constituency) v. Lau Siu Lai and Another (2020) 23 HKCFAR 338. See also Chan Ho Tin v Lo Ying Ki Alan [2018] HKCFI 345 (Au J at 101[80]).

166. Basic Law (n 4) art 26.

167. For a discussion of this conceptualisation of rule of law, see Benny Tai et al, ‘Pursuing Democracy in an Authoritarian State: Protest and the Rule of Law in Hong Kong’ Social and Legal Studies (2020) 29(1), 107–45. On a normatively ambitious conception of the rule of law, see also Thomas Bingham, The Rule of Law (Penguin, 2011). On an account of juxtaposing formalistic and substantive conceptions of the rule of law, see Jeremy Waldron, ‘The Rule of Law’ in Edward N Zalta (ed), The Stanford Encyclopedia of Philosophy (Summer 2020 Edition).

168. Zhang Taisu and Tom Ginsburg, ‘China’s Turn toward Law’, Virginia Journal of International Law (2019) 59(2) 306, 316–17, 370–5, 376–89.

169. See, for example, Eva Pils, ‘Rule-of-Law Reform and the Rise of Rule by Fear in China’ in Weizeng Chen and Hualing Fu (eds), Authoritarian Legality in Asia: Formation, Development, and Transition (Cambridge University Press, 2019) 90.

170. Taisu and Ginsburg (n 168).