II PRC Lawmaking for Hong Kong

An especially potent mode of PRC legal impact on the HKSAR is the most formal – and the least obviously relevant to comparative IAL. People’s Republic of China lawmakers can, and do, make laws that apply in the HKSAR. The Basic Law is the preeminent example. It is authorized by the PRC constitution, which provides, “The State may establish special administrative regions … [with] the systems … to be prescribed by laws enacted by the National People’s Congress [NPC] in light of specific conditions.”Footnote ³ The Basic Law is also provided for by the pact between the PRC and the UK concerning Hong Kong’s return to Chinese rule. The Joint Declaration states that “a Basic Law” would be adopted by the NPC to embody the commitments about Hong Kong’s future governance, including its legal order, set forth in the Joint Declaration (specifically article 3 and Annex I).Footnote ⁴ As the Constitution and the Joint Declaration envisioned, the Basic Law is an enactment of the PRC’s national legislative body.

From the perspective of Hong Kong, the Basic Law is an extraordinarily strong form of PRC legal influence. Although sometimes characterized as the SAR’s “mini-constitution,” it is, for Hong Kong, more entrenched than a constitution. It is not subject to amendment by the people it governs or the SAR government. The power of amendment lies with the central legislative authorities in Beijing, and the NPC Standing Committee (NPC-SC) may invalidate any SAR law that it finds to be not in conformity to the Basic Law.Footnote ⁵

Yet, the legal arrangements for the HKSAR include ostensibly serious, arguably legally binding, pledges to limit the PRC’s impact on law and the legal system in Hong Kong. In the Joint Declaration – which China regards as a treaty or treaty-like international legal instrument – the PRC declares its “basic policies,” which would “remain unchanged for 50 years.” Those policies include “a high degree of autonomy” for the SAR “except in foreign and defense affairs,” vesting “executive, legislating and independent judicial power, including that of final adjudication” in the SAR, governance by SAR inhabitants chosen in part through local elections or consultation, and continuity in social, economic, and legal systems, and liberal civil liberties.Footnote ⁶

The Basic Law, as promised in the Joint Declaration, would implement those commitments, and its text largely does so. It authorizes the specific types – and the “high degree” – of autonomy described in the Joint Declaration. It charges the SAR with safeguarding the “rights and freedoms” of SAR residents and adopts a list of liberal civil and political rights and the rights set forth in the International Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights. It also mandates that “the laws previously in force” including “the common law” and the “judicial system previously practiced” be “maintained” (with courts directed to “exercise judicial power independently,” and with the “power of final adjudication” given to a new Court of Final Appeal (CFA)). It declares that the “socialist system and policies” of the PRC will not apply to the SAR for fifty years, and grants the SAR government legislative, executive, and judicial power (including final adjudication). It provides for an elected legislature and a consultatively chosen Chief Executive, and declares an “ultimate aim” of selection of legislators and the Chief Executive by universal suffrage (in the case of the Chief Executive, from among candidates nominated “in accordance with democratic procedures”).Footnote ⁷ The SAR-enabling provision in the PRC Constitution – in a phrase echoed in the Basic Law and other Hong Kong-specific legal documents – arguably imposes another limitation: The SAR’s “systems” are to be framed “in light of specific conditions” in the region.Footnote ⁸

The Basic Law’s promise of restraint on the application of PRC law or the intervention by PRC lawmaking in Hong Kong was notable. At the time of reversion, there were reasons to make such a commitment, including the seriousness with which the PRC government – at least initially – took commitments made in the international treaty-like Joint Declaration, the plausible argument that making and honoring such commitments were vital to Hong Kong’s continued economic success, the input that Hong Kong representatives had through the Basic Law Drafting Committee, the heightened concern in Hong Kong and abroad about the potential impact of reversion in the aftermath of the Chinese regime’s actions against the protests at Tiananmen Square (and elsewhere in China) in June 1989, as well as Beijing’s broader assessment of what served its interests in a successful return of Hong Kong to Chinese rule.Footnote ⁹

In principle (under fundamental tenets of PRC law and approaches to international law) and (increasingly in the post-reversion era) in practice, such commitments cannot reliably constrain China’s influence on Hong Kong law and the SAR’s legal order. In the PRC view, the Joint Declaration – although accepted as having at least treaty-like status – does not include the contract-like quid pro quo that is characteristic of typical bilateral treaties and that, in the UK view, characterizes the Joint Declaration. This position is amply reflected in the text. While the British provision states, “The Government of the United Kingdom declares that it will restore Hong Kong to the [PRC]” as of July 1, 1997, the parallel Chinese article asserts, “The Government of the [PRC] … has decided to resume the exercise of sovereignty over Hong Kong” on the same date.Footnote ¹⁰ In official and orthodox Chinese views, the nineteenth-century treaties that purportedly transferred sovereignty over Hong Kong Island and the Kowloon Peninsula and granted a 99-year lease to the New Territories were “unequal treaties” and, therefore, void ab initio.Footnote ¹¹ There could be no binding commitment by China concerning the future governance of Hong Kong – including its legal order – in return for the UK’s surrender of sovereignty over two of the three territorial components of Hong Kong. Tellingly, the provision in the Joint Declaration that sketches the arrangement to be fleshed out in the Basic Law states that what follows are “the basic policies of the [PRC] regarding Hong Kong” which will be implemented through NPC legislation.Footnote ¹² In recent years, Beijing has declared that the Joint Declaration’s “mission was completed” at the moment of reversion and that the Joint Declaration “does not have any binding power on how the central government administers Hong Kong” and thus no longer imposes (if it ever did) obligations on the PRC, enforceable at the behest of the UK.Footnote ¹³

The Basic Law cannot be, as a matter of PRC constitutional theory, more unamendable than other NPC legislation. The Basic Law itself affirms the NPC’s broad powers of amendment (although it purports to limit changes to those that do not contravene the PRC’s basic policies regarding Hong Kong).Footnote ¹⁴ More fundamentally, in the PRC’s constitutional order, the NPC has full powers to amend legislation, as well as the constitution itself.Footnote ¹⁵ If a potentially persuasive legal argument could assert that laws passed pursuant to the SAR provision in the constitution are somehow more deeply entrenched than other NPC legislation (and thus less amenable to discretionary amendment by the NPC), there is no mechanism in PRC law, other than the NPC-SC, to address such a constitutional challenge.Footnote ¹⁶

The PRC has not used its powers to amend the Basic Law’s main text to affect Hong Kong’s legal order. But it has engaged in other lawmaking for the SAR, sometimes with major effects. The PRC constitution, unsurprisingly, applies in the SAR, but presumptively with the limitations adopted in the Basic Law, as legislation consistent with the constitution’s rules on SARs. The Basic Law and the Joint Declaration place beyond Hong Kong’s authority some areas of law, particularly matters of foreign affairs and national defense. Annex III to the Basic Law, along with subsequent decisions by the NPC-SC, have made a dozen national laws in those and related fields applicable in the SAR.Footnote ¹⁷ Focused on matters such as national symbols, PRC nationality, maritime rights rooted in international law, and foreign sovereign and diplomatic immunity, such laws have not greatly affected Hong Kong’s internal legal order.

In a much more transformative move in 2020, the NPC adopted a National Security Law for the Hong Kong SAR (HKNSL), precipitated by the massive protests that erupted in Hong Kong initially in response to a proposed local ordinance that would have permitted extradition of criminal defendants from the SAR to face prosecution in Mainland PRC courts. With the legislation, PRC lawmakers imposed elements of an illiberal, more PRC-like legal order – and in some instances PRC law itself. The most notable features of the law include: broadly and vaguely defined crimes of secession, subversion, terrorist activities, and collusion with “external” actors to endanger national security in Hong Kong; extensive affirmative obligations of the SAR government to address threats to security, including through establishing an SAR Committee for Safeguarding National Security, accountable to the central government, with broad policy-shaping powers, and with a central government-appointed National Security Advisor; authorization of a central government security force in the SAR and directives to create special SAR police and prosecutorial units; special selection procedures for judges who adjudicate national security cases, including mandatory exclusion of those who have made statements or taken actions “in any manner endangering national security”; permission to suspend a wide range of criminal procedure laws that promise due process (including public trial, jury trial, bail, and restrictions on searches, surveillance, and other investigative measures); and the creation in Hong Kong of a central government Office for Safeguarding National Security with extensive powers that supplement those of SAR institutions and that include taking over investigation and prosecution of serious national security cases in Hong Kong and doing so under the PRC’s Criminal Procedure Law and in PRC-designated courts.Footnote ¹⁸

Following several “Decisions” and “Interpretations” of the Basic Law rebuffing calls from Hong Kong for democratic reforms to election rules,Footnote ¹⁹ the NPC-SC exercised its lawmaking power to address an especially serious version of a recurring challenge: Pro-democracy candidates had won a landslide victory in elections to local district councils in November 2019, amid the ongoing anti-extradition law and pro-democracy protests and anger over the government’s repressive response. In the shadow of the then-newly enacted HKNSL, the NPC-SC in March 2021 amended Basic Law Annexes I and II, which set forth the mechanisms for selecting the SAR Chief Executive and members of the Legislative Council. The amendments shrank the share of the legislature chosen by universal suffrage (to twenty out of ninety seats). They also expanded and restructured the Election Committee to secure control by reliably PRC and SAR government-friendly members, and empowered it to select forty of the ninety members of the legislature (alongside its long-standing role of nominating all Chief Executive candidates). The new rules further required that candidates for the legislature, Chief Executive, and the Election Committee be vetted by the HKNSL-created SAR Committee for Safeguarding National Security and the SAR police’s new national security unit.Footnote ²⁰

In sum, when the PRC has influenced Hong Kong law, it has sometimes done so by making PRC law that applies in the SAR. While such moves, tautologically, make SAR law converge with PRC law, the pattern has been more complex in terms of substantive content. In a few relatively narrow contexts, originally PRC-applicable law has been extended to reach the SAR. Broadly, PRC lawmaking for the SAR (including the Basic Law) also has promised – at times, and increasingly hollowly – to forego mandating convergence with PRC law or transformative changes to Hong Kong’s inherited legal order. To a large and growing extent, however, Beijing’s lawmaking has effected changes in the SAR to check democratization and (in Beijing’s view) threats to order and security. These measures have altered Hong Kong’s law and legal order in ways that make it more closely resemble the Mainland’s. Such formal lawmaking is not the only means that China has had available and employed.

III PRC Interpretations of PRC Law for Hong Kong

The NPC-SC has issued five formal “Interpretations” of the Basic LawFootnote ²¹ and one of the HKNSL – exercising powers that Hong Kong-applicable, PRC-made law explicitly grants to the NPC-SC – and several “Decisions” – sometimes explicitly pursuant to the NPC-SC’s general powers under the PRC constitution to interpret PRC laws (a category that includes the Basic Law and the HKNSL).Footnote ²² These NPC-SC actions are framed as interpretations of law already applicable in – and, thus, binding on – Hong Kong. Formally, they are not PRC-generated changes in Hong Kong Law, in that they purport merely to ascertain and explicate the meaning of the PRC-created Basic Law (or HKNSL). In practice, they have profoundly affected the legal order in Hong Kong, most often in the form of pushing back against calls for, or moves toward, liberal democracy or, in one instance, robust judicial powers. Although not requiring imitation or replication of PRC models, these NPC-SC moves blocked divergence of Hong Kong’s legal order from the PRC’s in key areas of law.

In 1996, the Preparatory Committee for the HKSAR, exercising powers conferred by the NPC,Footnote ²³ authorized creation of a Provisional Legislative Council for the soon-to-be-established SAR, thereby derailing the so-called “through train” arrangement by which the final colonial-era Legislative Council would have become the first Legislative Council of the SAR.Footnote ²⁴ This move by the PRC-created body gave the power to select the legislature to the same 400-member Selection Committee that would choose the first SAR Chief Executive. The decision effectively overturned democratizing electoral changes introduced by Hong Kong’s last colonial governor, partly on the basis that the reforms violated the Basic Law (or, at least, the PRC’s interpretation of it).Footnote ²⁵ Those reforms – a last gasp of UK influence on Hong Kong law – had greatly expanded the electorate for the one-half of the legislature’s seats that were to be chosen by “functional constituencies,” transforming what had been envisioned as a quasi-corporatist arrangement representing sectoral economic interests and economic elites into one in which most employed Hong Kongers would have one vote in a geographic constituency and a second vote in a functional constituency related to their jobs.

In 2004, the NPC-SC’s second formal Interpretation of the Basic Law and an NPC-SC Decision issued three weeks later combined to reject proposals from Hong Kong to allow universal suffrage elections for the Chief Executive in 2007 and all seats in the Legislative Council in 2008. The NPC-SC actions affirmed that measures to amend the rules for selecting the SAR’s Chief Executive and legislators had to comply with the cumbersome procedures set forth in two Annexes to the Basic Law – on the surface, a rather anodyne point about process, but one that underscored the formidable barriers to democratic changes to electoral laws. More substantively, the NPC-SC Interpretation and Decision determined that there would be no changes to the rules in the near term. The NPC-SC cast the result in part as an interpretation of the principles embodied in the text of the Basic Law (including the Annexes) that changes to election rules would occur only when there is a “need” to change those rules “in light of the actual situation” in Hong Kong and consistent with “gradual and orderly progress” toward the “ultimate aims of universal suffrage.”Footnote ²⁶

In 2007, the NPC-SC reprised this pattern. It issued a Decision that rejected a new set of Hong Kong proposals for universal suffrage elections of the Chief Executive and the Legislative Council, reaffirmed the need to comply with the existing rules for achieving amendments to election rules, and echoed the 2004 Decision’s discouraging tone by stating that changes would be considered “at an appropriate time.”Footnote ²⁷ In 2014, the NPC-SC determined that the SAR government had submitted a report on electoral reform proposals that met the procedural requirement of the Basic Law Annexes, and it authorized the election of the Chief Executive by universal suffrage in 2017. But the NPC-SC Decision pointedly noted that the position of the Chief Executive in the Basic Law framework meant that any occupant of that office must “love the country” and “love Hong Kong,” limited the number of candidates (to two or three), and set a high threshold for nomination (by at least half of the members of a nominating body similar to the Election Committee that had selected the prior Chief Executive). Those requirements meant, of course, a less-than-democratic process that would yield a winner acceptable to Beijing. The Decision also rejected proposals to more thoroughly democratize the process for electing the legislature, keeping the rules for the 2016 election in place for the subsequent round.Footnote ²⁸ The 2014 Decision elicited a strong response in Hong Kong, spawning the pro-democracy protests of Occupy Central and the Umbrella Movement.

In 2016, the NPC-SC issued its fourth Interpretation of the Basic Law, again with the effect of making Hong Kong law less democratic. Candidates from the pan-democratic camp who had prevailed in contests for directly elected seats in the 2016 Legislative Council departed from the prescribed text of the oath required by the Basic Law and administered upon taking office. To convey pro-democracy and pro-Hong Kong positions and to signal negative views of the PRC, they supplemented or altered the text. Responding to a request from the SAR government, the NPC-SC interpreted the Basic Law’s requirement that officeholders “in accordance with law, swear to uphold the Basic Law … and swear allegiance to” the SAR and the PRC. The Interpretation decreed that this provision meant that one who “takes the oath in a manner which is not sincere or solemn” or “intentionally reads out words which do not accord with the wording … prescribed by law” is “disqualified” from assuming the office and has no opportunity to lift the disqualification by retaking the oath properly.Footnote ²⁹ On the basis of the Interpretation, six democratically elected members were barred from the legislature.

In 1999, the first NPC-SC interpretation of the Basic Law affected – albeit somewhat obliquely and indirectly – another element of Hong Kong’s legal order and a different point of contrast with the PRC’s legal order: a robust common-law-style notion of constitutional judicial review. The SAR CFA had exercised its powers of judicial review under the Basic Law to strike down SAR ordinances that required persons of Chinese nationality born outside Hong Kong to Hong Kong permanent resident parents to apply for approval from PRC government authorities to enter Hong Kong (as the Basic Law required for people form non-Hong Kong parts of China). The CFA found that the requirement (although consistent with one relevant Basic Law provision) violated a provision of the Basic Law that accords such persons a “right of abode” in Hong Kong because they are “permanent residents” of Hong Kong.Footnote ³⁰

The CFA went beyond overturning the SAR ordinances and – in a move that echoed or exceeded the US Supreme Court’s assertion of powers of judicial review in Marbury v. Madison – asserted that it had the authority, and duty, to review (and declare invalid) legislative acts by the NPC or NPC-SC for inconsistency with the Basic Law. The NPC-SC Interpretation rejected the CFA’s decision on the merits, interpreting the Basic Law as imposing the requirements that were reflected in the local ordinances.Footnote ³¹ Earlier, sharp condemnation of the CFA ruling by PRC legal scholars (understood to represent the central government’s views) and an application from the SAR government to the CFA to “clarify” its decision in the case had elicited a statement from the CFA accepting that the NPC-SC had the authority to issue an Interpretation binding on SAR courts and that the CFA “accepts that it cannot question” the NPC’s and NPC-SC’s “authority … to do any act which is in accordance with” the Basic Law.Footnote ³²

Much more recently, the NPC-SC issued an Interpretation of the Hong Kong National Security Law that set forth limits to the right to counsel for defendants charged under the law.Footnote ³³ Facing charges of colluding with foreign actors to endanger national security, media mogul and pro-democracy activist Jimmy Lai sought representation by an eminent British barrister who was not admitted to practice law in Hong Kong. After SAR courts permitted the lawyer’s participation, the SAR government sought, with the approval of the PRC State Council, the NPC-SC Interpretation. The Interpretation decreed that, in the absence of a certificate from the Chief Executive permitting representation, the SAR Committee for Safeguarding National Security (which was created by the HKNSL and accountable to Beijing) had judicially unreviewable authority to determine whether a case involves national security or evidence that implicates state secrets and, where the Committee so determines, to deny overseas lawyers permission to serve as defense counsel because such representation endangers national security.

Through the NPC-SC’s Interpretations and Decisions, China has, thus, greatly affected Hong Kong law and the SAR’s legal order. It has done so most notably on issues related to democracy and judicial review. By framing its decisions as interpretations of existing law, Beijing has exercised influence without formally creating “new” law for Hong Kong.

Notwithstanding its authority to determine Hong Kong law (whether by enacting or interpreting PRC law for the SAR), China often exerts influence through means that do not depend on exercises of the national government’s sovereign power. Even in politically sensitive areas where Beijing has relatively clear goals and where incentives to use methods under PRC authorities’ direct control would seem to be strong, the modes of influence are often less formal and determinative.

IV Hong Kong Lawmaking

Many of the changes in Hong Kong law that have made the SAR’s legal order more closely resemble the PRC’s are acts of SAR local lawmaking under PRC influence. Such influence has run a gamut from legal mandates, to diffuse and not-fully transparent PRC pressure and preferences – some embraced by local actors. Many examples of local legal change proposed or adopted in post-reversion Hong Kong have contributed to the SAR’s move away from liberal democratic or liberal rule of law models and toward a more PRC-style legal regime. A few of the most important and high-profile instances suggest the broader pattern and illustrate the range of forms of influence.

Article 23 of the Basic Law obliges the SAR to “enact laws on its own to prohibit any act of treason, secession, sedition, or subversion against the Central People’s Government” and to prohibit theft of state secrets and various forms of foreign influence in SAR politics. China thus imposed a legal obligation on the SAR to enact local laws, although without specific content or by a particular date. Shortly after being reappointed to a second term, the first SAR Chief Executive Tung Chee-hwa proposed the National Security (Legislative Provisions) Bill 2003 (popularly known as “article 23 legislation”), perhaps reflecting mounting pressure from BeijingFootnote ³⁴ or perhaps as an act of preemptive compliance – that is, doing what presumably would please the government in Beijing, to which he was legally accountable and whose support was necessary for his appointment and reappointment. The bill would have amended several Hong Kong criminal and public order ordinances and, as critics charged, gone beyond what article 23 appeared to require in terms of restricting civil and political liberties (including punishment possibly for speech, extraterritorial reach, erosions of criminal procedure protections, and bans on PRC-banned organizations). The bill triggered a furious backlash from pro-democracy Hong Kong political leaders, much of the bar, and the Hong Kong public – more than 500,000 of whom took to the streets in protest of the bill (among other issues) – and foreign governments. The SAR government withdrew the bill, and the controversy played a major role (along with flawed handling of the SARS outbreak) in Tung’s resignation in 2005.

In March 2024, in the aftermath of the passage of the HKNSL, the SAR adopted the article 23-implementing Safeguarding National Security Ordinance (Instrument A305). Pressure and influence from Beijing were clear, although the SAR government played a self-proclaimed proactive role as well. SAR Chief Executive Carrie Lam had publicly committed and then reaffirmed a commitment to introduce article 23-implementing legislation in the aftermath of the 2019 protests in Hong Kong (denounced by both SAR and PRC officials for endangering national security), the subsequent PRC enactment of the HKNSL, and the democrats’ victories in the local elections (which would later prompt the anti-democratic revisions to laws governing elections to the SAR legislature).Footnote ³⁵ More pointedly and specifically, an NPC Decision in 2020 that called for enacting the HKNSL also directed the HKSAR to fulfill its “constitutional responsibilities” and “complete the national security legislation” promptly.Footnote ³⁶ The SAR legislation cited Basic Law article 23, the 2020 NPC Decision, the HKNSL, and the NPC-SC Interpretation of the HKNSL as imperatives requiring the legislation. The Ordinance’s fast-tracked passage, with unanimous support from a legislature devoid of pro-democracy representatives (thanks to earlier PRC-mandated changes in election laws) under the administration of Lam’s successor John Lee, had been urged by and drew public praise from PRC authorities.Footnote ³⁷

Much of the content of the 190-article Ordinance echoed, with substantial added detail and with specific amendments to many longstanding Hong Kong ordinances, the HKNSL. Critics in Hong Kong and abroad pointed to features that were consonant with the HKNSL and PRC law (as well as the failed 2003 bill) and arguably went beyond the HKNSL. Concerns included: broad or vague definitions of the crimes of treason, insurrection (and incitement thereto), espionage and improper acquisition, possession or disclosure of state secrets, national-security-endangering sabotage, and external interference that endangers national security; possible criminalization of speech, including political advocacy, disclosure of seemingly unthreatening information to foreigners, and incitement to “disaffection” with the central or local state; broad government powers to ban organizations; authority of the Chief Executive to add, without advance legislative consent, to the list of national security crimes; potential punishments, including for nonviolent offenses, that are much harsher than under inherited colonial laws and that resemble PRC law; expanded investigative powers, free from the ordinarily applicable constraints of Hong Kong law; permissible denial of access to counsel; and extraterritorial reach.Footnote ³⁸

The saga of Hong Kong’s article 23 legislation illustrates some of the complexities of inter-Asian legal influence. In terms of process, as the foregoing sketch suggests, there are mandates from the central government (which are absent in true inter-jurisdictional cases of legal influence), but the contours of the mandates are uncertain and appear to have been imprecise. Binding directives coexisted with more diffuse forms of political pressure and influence from Beijing and possibly acts of political ambition and favor-currying by local officials – traits that are likely to be found in examples of IAL more typical than the PRC–Hong Kong case. A definitive assessment of the relative importance of the various types of influence is elusive, and the effects may, of course, be synergistic. In terms of substance, the preexisting, largely colonial-era, laws in Hong Kong on matters akin to those addressed in the article 23-implementing legislation and the HKNSL were far from paragons of liberal legality. Indeed, as the section of this chapter on “Influencing the Legal Order (Beyond Laws)” addresses, they have proven capacious enough to be a formidable tool, alongside the post-reversion laws, for prosecuting and stifling the regime’s critics, pro-democracy advocates and protesters, and other targets.

The PRC’s impact on SAR-enacted local election law has been simpler and more straightforward. When central PRC authorities have approved or required changes in election law in Hong Kong, the SAR has enacted conforming changes. This pattern was most dramatic in 2020–2021 when extensive amendments (in 475 articles) were made to the Legislative Council Ordinance to implement the detailed changes mandated by the NPC-SC’s amendments to Basic Law Annexes I and II. The heavily PRC-shaped rules resulted in the disqualification of pro-democracy candidates and a sweeping win for government-supporting candidates in the 2021 elections, which had been postponed, with Beijing’s support and quite possibly at its behest, from their scheduled 2020 date. The stated reason was the COVID-19 pandemic but, critics plausibly charged, the goal was to effectuate the election system changes required by the NPC-SC and achieve the electoral outcome sought by Beijing and the SAR government. The SAR review process banned a dozen pro-democracy candidates from the ballot, and the elections produced the legislature that voted unanimously for the 2024 national security ordinance.Footnote ³⁹ (In an earlier, broadly similar move, the SAR government implemented the NPC-SC Interpretation concerning legislative oath-taking by taking local legal measures to disqualify four elected legislators.)

A more complicated case of possible PRC influence on Hong Kong law involves another failed attempt at SAR legislation that was part of the backstory to the national security and election law changes of the early 2020s. The protests in 2019 that evolved into broad pro-democracy and anti-SAR-government movement began in reaction to a proposed amendment to Hong Kong’s extradition ordinance backed by Chief Executive Carrie Lam.Footnote ⁴⁰ The existing law concerning extradition specifically excluded extradition to the Mainland. The amendment – proposed in reaction to a case in which a Hong Kong resident had fled back to the SAR from Taiwan and could not be extradited because the two jurisdictions had no extradition agreement – would have given the Chief Executive power, subject to judicial review, to grant extradition requests from any jurisdiction, including the PRC. The bill was withdrawn in the face of sharp criticism and the large-scale protests.

The extent to which the PRC was pushing for such a change to Hong Kong law is contested. Chinese authorities had been frustrated with difficulties in getting hold of persons in Hong Kong accused of violating PRC criminal laws (and were generally believed to have resorted to kidnapping in at least one high-profile case) and publicly supported the legislation after it was proposed.Footnote ⁴¹ In language notably echoed by Beijing, Lam characterized the proposed amendment as a move to “plug a loophole” in Hong Kong law – a statement that suggested that the existing ordinance’s explicit targeting of the PRC was in her view problematic.Footnote ⁴² In terms of substance, the proposed amendment would not have made Hong Kong law more like PRC law: PRC law does not adopt expansive extradition provisions and prohibits extradition of PRC nationals.Footnote ⁴³ For opponents of the proposed legislation, the principal problem of PRC legal influence lay not in the prospect that PRC or PRC-like law would enter Hong Kong law but, rather, in the threat that people in Hong Kong would become subject to Mainland criminal legal process and prosecution in PRC courts and under PRC laws that did not apply in the SAR.Footnote ⁴⁴

The People’s Republic of China’s influence through formally autonomous SAR acts of compliance with PRC directives or preferences – and possible limits to such influence – may also characterize another high-profile legal development in early post-reversion Hong Kong. To be sure, the NPC-SC’s Interpretation of the right of abode-related provisions in the Basic Law effectively quashed prospects that the CFA could arrogate to itself Marbury or Marbury-plus powers of constitutional review and led to the CFA explicitly recognizing the limits to its powers articulated by the Interpretation. But the CFA’s statement of compliance was arguably hedged, stating that the Court “accepts that it cannot question” the NPC’s and NPC-SC’s authority “to do any act which is in accordance with” the Basic Law.Footnote ⁴⁵

V Influencing the Legal Order (Beyond Laws)

The People’s Republic of China’s influence on Hong Kong’s legal order extends beyond effects on formal lawmaking. A legal order is, of course, much more than the laws themselves. In the SAR, much of the change that has brought convergence with Mainland legal norms and practices has occurred in these other dimensions.

In Hong Kong’s executive-led government, the Chief Executive and the Chief Executive’s subordinates wield a large share of local power over law and the legal order. The evolving law for selecting Chief Executives has consistently assured that the top office’s occupant would be acceptable to Beijing and, in turn, so would the SAR government’s stance on legal matters important to Beijing. The shift to universal suffrage for the Chief Executive has not changed that pattern, given the role of the Election Committee in vetting candidates. Some of the Interpretations of the Basic Law discussed earlier in this chapter were sought by the Chief Executive-headed SAR government. The Chief Executive’s alignment with Beijing and practices that diverge from liberal rule-of-law norms have been especially pronounced during the tenure of John Lee, who was the SAR Secretary of Security during the crackdown on the 2019–2020 protests and who, as Chief Executive, has presided over the implementation of the HKNSL and the enactment and implementation of related local legislation.Footnote ⁴⁶ Particularly after the 2014 Umbrella Movement and the 2019 anti-extradition law protest, the SAR administration undertook large-scale prosecution of movement leaders and protesters for crimes ranging from public order offenses to subversion. For national security cases, such exercises of SAR police and prosecutorial authority occur with additional authority and greater insulation from legal restraints and judicial review – partly thanks to HKNSL-created rules and institutions.

The repeatedly revised rules for the Legislative Council – the SAR’s relatively weak legislature – have contributed to a similar trajectory for another principal law-related organ of SAR governance. Election rules, including the large number of seats from functional constituencies and multi-member districts, always limited the share of seats occupied by pan-democratic camp representatives and, thus, legislative opposition to measures that diverged from liberal and democratic norms and converged with the preferences and, to some extent, paradigms of the PRC. Nonetheless, throughout much of the SAR’s early history, opposition and the prospect of defeat in the Legislative Council checked illiberal or authoritarian-leaning government initiatives, with the 2003 article 23 legislation being a prominent example. Particularly after the changes that followed the NPC Interpretation disqualifying critical pro-democracy and pro-autonomy elected legislators and the sweeping reforms in 2020 to the election rules – including a nomination process to screen out insufficiently “loyal” candidates – the Legislative Council has been more reliably compliant with the agenda of the Beijing-backed Chief Executive, including passing the article 23-implementing legislation in 2024.

Some of the most striking changes have been in the courts. The CFA is permitted by law to have up to thirty non-permanent judges, including from other common law jurisdictions (in addition to six permanent judges drawn from Hong Kong). The purpose of this arrangement was to assure continuity with Hong Kong’s prior legal order and to provide visible reassurance of continuity and autonomy. But the number of foreign non-permanent judges has dwindled to a half-dozen, falling sharply in recent years, including six resignations since 2020. The departures have been interpreted as responses to deterioration of the rule of law and liberal legality in the SAR. In some cases, the exiting jurists tied their decisions explicitly to such concerns (principally to the impact of the HKNSL). Under the regime created pursuant to the HKNSL, foreign judges are not permitted on panels hearing national security cases. Participation by foreign non-permanent judges and citation to foreign – principally common law – precedent has declined steeply in Hong Kong court decisions in recent years, possibly showing the weakening influence of such judges and sources of law.Footnote ⁴⁷

Careful scholarly analyses of SAR court – and especially CFA – decisions have discerned significant shifts in judicial practices. These trends include greater deference to SAR political branches’ (as well as the PRC’s) actions and choices, approval of reductions in criminal procedure and due process protections, other departures from prior liberal rule of law norms, and broad acquiescence in the erosion of liberal individual rights and Hong Kong’s autonomy.Footnote ⁴⁸

The courts have reliably convicted and upheld convictions for hundreds of defendants involved in political protests, pro-democracy movements, and other political activities for violating inherited colonial and new SAR-era laws prohibiting disruption of public order, subversion and sedition, and new national security crimes (including subversion) introduced from 2020 onward. Major rounds targeted leaders and participants in the Umbrella Movement and the anti-extradition law protests. Shortly after the HKNSL came into force, forty-seven prominent defendants were charged with conspiracy to commit subversion (in violation of the HKNSL) for their roles in planning an informal “democratic primary” that sought to identify pro-democracy candidates for the 2020 elections that were postponed and later held under revised, undemocratic rules. The forty-five who pled guilty or were convicted included student leaders, a law professor associated with democratic reform efforts, former members of the Legislative Council and other high-profile pro-democracy politicians, and independent media figures.Footnote ⁴⁹

Such convictions and the resulting removal from active roles in Hong Kong law and politics, along with the broader changes in Hong Kong’s legal order, have led to the chilling, silencing, or departure from Hong Kong of pro-democracy politicians, activists, and liberal and rights-oriented lawyers, and shrinking space for independent media and critical civil society. Those developments, in turn, have weakened forces outside the legal system (narrowly defined) – the larger law-related ecosystem – that might resist trends that have been transforming Hong Kong’s legal order.

These patterns in legal and law-related institutions’ staffing and functioning reflect China’s direct and indirect influence (alongside other, more local factors) on the SAR legal order’s movement away from Hong Kong’s inherited legal order and the once-promised democratic trajectory in the laws governing its political order – and thus movement toward, at least in a general sense, closer resemblance to the PRC.

VI Conclusion: Scope, Variety, and Complexity of Influence

Although this chapter covers a large swath of Hong Kong’s post-reversion legal trajectory, its scope is in some ways narrow. The foregoing discussion focuses on areas of public law (particularly those most closely adjacent to politics) and formal state institutions (legislative, executive, and judicial) and the laws affecting their composition and powers. If we were to widen the aperture to take in developments in, say, commercial law, or the law- and legal order-shaping activities of non-state actors, or legal changes in areas where Beijing appears to have a less fully developed and urgent agenda, some of the less formal and direct modes of influence that emerge in the foregoing account might well appear more prominent and pervasive. At the same time, the indications of such phenomena even in the areas of law considered in this chapter – where they are less likely to be present – may provide especially strong confirmation of their existence, though not their full scope. At a broader and deeper level, much the same is true of the PRC–Hong Kong experience, viewed in the comparative context of more typical cases of inter-Asian legal influence, where the robust formal and practical power that the PRC wields over the SAR is not present.

First, the PRC–Hong Kong case indicates that the mechanisms of trans-jurisdictional legal influence in Asia are sometimes oblique and opaque, mediated through the recipient jurisdiction’s institutions and legal-political actors and reflecting contextual factors. Border-crossing legal influence thus often looks more neocolonial than colonial, even where one party (Beijing) has plenary sovereign authority to pursue full-blown lawmaking or issue binding government mandates to the other (Hong Kong) and even in areas of law where the stronger party’s imperative or temptation to exercise such power seems especially strong. Although this pattern surely reflects the central PRC authorities’ calculations of costs and benefits and possible resistance, it also resonates with a broader feature of China’s growing legal impact abroad: the relatively low salience of the type of “legal model-exporting” agenda that characterized much of the US- and Western-led drives to promote legal reform abroad during the postwar and post–Cold War eras.Footnote ⁵⁰

Second, the Hong Kong experience illustrates the complicated relationship between exporting models and influencing legal orders, as well as the difficulty of discerning causation. Even where Beijing could have required Hong Kong to adopt PRC models, and even when PRC institutions made or mandated law for Hong Kong, the result generally was not a simple “transplant” of PRC paradigms. Substantive characterizations are difficult and contestable: As Hong Kong has moved away from aspects of the laws and legal order inherited from colonial times and abandoned progress toward the legal elements of a democratic political order that were imagined in the arrangements for reversion (and nudged forward in the late days of British rule), such divergence might not necessarily or incontestably be characterized as convergence with PRC models. In terms of process, the pathway for Hong Kong’s law and legal order toward achieving Beijing’s ends of maintaining social order and stability, illiberal and undemocratic governance, and so on often (although far from always) entailed distinctively Hong Kong (or at least not closely PRC-imitating) lawmaking and law-shaping. The adoption of illiberal or undemocratic legal rules and mechanisms in the SAR includes instances where it is, at best, difficult to untangle the relative importance of demands from Beijing, the more diffuse shadow of Beijing’s preferences, and the agendas of local officials and interest groups. In some cases, tools of illiberal, undemocratic, or repressive law were in the toolkit inherited from colonial times and could be used with little adaptation, albeit by different rulers.

Finally, the Hong Kong example spotlights the phenomenon of competition for influence in a world of plural sources of trans-jurisdictional legal influence, with China as a rising influencer. To be sure, the SAR is an extreme case – and arguably the canary in the coal mine – of PRC influence on legal orders beyond the Chinese Mainland. Still, the progression across the SAR’s history is broadly instructive. While China’s formal authority to shape Hong Kong law has been extremely broad and deep since 1997, Beijing’s apparent exertion of influence and practical impact have increased in scope and scale. And PRC/SAR concern with meeting Western or other foreign metrics for the character and quality of the influenced legal order has waned.Footnote ⁵¹ Therein lie possible lessons that warrant attention from analysts of IAL in an era of China’s proclaimed pursuit of “foreign rule of law” [shewai fazhi]Footnote ⁵² and US–China competition across many fields, including law and transnational legal influence.