For several years, observers have noted that many Chinese intellectuals who identified as “new left” critics of the PRC’s market reforms in the 1990s and 2000s have since then not only endorsed state capitalism, but also argued in favor of sovereignism and nationalism. Xu Jilin, a professor of intellectual history at East China Normal University in Shanghai, was one of the first to identify Carl Schmitt as a decisive influence in his article “The Specter of Leviathan: A Critique of Chinese Statism since 2000” (the original was first published in Taiwan’s journal Sixiang in 2011). In a recent article, I argued that as the critique of liberalism moved from the economic to the political field, the “new left neostatists” articulated three main ideas: the superiority of political sovereignty over the rule of law; a critique of the creeping “judicialization” of politics (infiltrating China from the West) defining a need to “repoliticize” the state; and a critique of universalism (liberalism being only one guiding philosophy among many) which leads to an assertion of Chinese exceptionalism (China as a constitutional regime under an illiberal political principle, comparable to Iran).
Among the “statists,” it is remarkable that legal scholars—whose discipline only really emerged in China starting in the 1990s—have played a central role. Many of these scholars are connected to Peking University Law School, and are well acquainted with Schmitt’s writings. It has also not gone unnoticed that experts on Hong Kong’s constitution and legal system have been prominent members of this group. Arguably the most well-known among them, Jiang Shigong, benefited from a four-year secondment to the Central Government’s Liaison Office in Hong Kong from 2004 to 2008, after which he was elevated to a position of influence in the Hong Kong policy-making apparatus. He is considered to be the author of the June 2014 State Council White Paper on “The Practice of One Country Two Systems,” which first put forward the controversial notion of “comprehensive jurisdiction” (quanmian guanzhiquan), according to which the Central Government can act in the territory without any legal restrictions. As I noted previously, Jiang argues that while “one country, two systems” was a useful legal formula to achieve China’s resumption of sovereignty, the question of real sovereignty in Hong Kong can only be solved through political rather than legal means. In his view, China must assert substantive sovereignty through patriotic education and assimilation of the population, taking as reference the Qing experience of the Tianchao tributary system. While legal arrangements were useful for solving complex international problems, the real issue remains the political assimilation of Hong Kong. Since 2014, Jiang’s influence has only grown after he emerged as an authoritative voice after the 19th Party Congress of 2017, celebrating the “significance of the ‘Xi Jinping era’ in Party history, the history of the Republic, the history of Chinese civilization, the history of the international Communist movement, and the history of mankind.”
Viewed in light of Jiang’s work, the decision proposed on May 22 and adopted on May 28 by the National People’s Congress to directly legislate on national security for Hong Kong, is not simply an ad hoc arrangement to plug a loophole—as the Hong Kong government has argued—but the expression of the PRC regime’s broader political project for Hong Kong, and even for the PRC as a whole. It is worth recalling that preserving Hong Kong’s rule of law and common law system under Chinese sovereignty was one of the central components of the compromise under which Hong Kong’s handover to China took place in 1997. Liberals hoped that the territory’s legal system could serve as a model for China’s evolution toward greater rule of law even under the party-state. As such, the handover itself can be seen as an example of the “judicialization of politics” that Jiang Shigong has criticized, both because political issues in Hong Kong could be dealt with by local courts, challenging the supremacy of sovereignty as a political principle, and because more broadly, a question of sovereignty (Hong Kong’s status) was solved by formal legal means.
In fact, far from leading to a more independent judiciary in the mainland, the legal guarantees enshrined in Hong Kong’s “high degree of autonomy” have been gradually eroded in the territory under the imperative of reasserting Chinese sovereignty. The trend began with a series of “interpretations” of Hong Kong’s Basic Law, and accelerated with a series of interventions in rapid succession starting in 2015: cross-border renditions, interventions by Beijing into ongoing legal proceedings, disqualification of elected lawmakers, politicization of immigration (i.e. a visa extension denial for an accredited journalist) and of prosecutions, and most recently a unilateral change of status of the Central Government’s Office in Hong Kong. As the University of Hong Kong legal scholar Johannes Chan commented in relation to the latter incident on 20 April:
The rule of law requires that law be interpreted objectively and rationally. The meaning of the law cannot be changed or twisted in order to meet the political weather of the day. In the Mainland, some officials may still believe that law is to serve politics. As a result, when law and politics are in conflict, politics prevails. Law could be interpreted, reinterpreted, twisted, or even ignored at will as long as it is politically expedient to do so. This is not the legal system or the rule of law in Hong Kong. If the Mainland’s idea of law is to be extended to Hong Kong; if the interpretation of the Basic Law is just like what Humpty Dumpty said, that it is dependent on one’s whim; when a requirement to take an oath upon assumption of office could become an eligibility requirement to run for the office; when the restriction that national law shall not apply to Hong Kong could be turned to mean national law shall not apply to everywhere in Hong Kong; when a clear department of the Central People’s Government can be regarded as not a Central People’s Government department in the Basic Law to serve political expediency, the Basic Law will soon become an elusive document that will be devoid of any significance.[1]
The national security legislation announced one month later on 22 May (the full text of which remains unavailable) was precisely designed to institutionalize the primacy of politics and sovereignty over the rule of law. This is particularly clear on the procedural level. As Chan has argued, there is a strong case that the procedure chosen by Beijing to circumvent Hong Kong’s legislature is in breach of both Hong Kong’s Basic Law and the Sino-British Joint Declaration, an argument also made by the Hong Kong Bar Association.
Shortly thereafter, Jiang Shigong published an article refuting the procedural arguments for unconstitutionality in a rather perfunctory manner. The substance of his essay is devoted to the history of the drafting of the Basic Law in the late 1980s. Jiang argues that two decisive points could not be settled and were left for later: national security and universal suffrage. The 2003 protests against national security legislation led to a structural imbalance by empowering a view of the Basic Law as a safeguard (a “defensive law” as he puts it), whereas in his view the Basic Law was intended as a tool to extend the exercise of state sovereignty to Hong Kong (an “offensive law”). This structural imbalance, he continues, led the discussion over universal suffrage to deviate toward self-determination and the “Taiwanization of the Hong Kong issue.” For this reason, it is now necessary to restore the lost balance to Hong Kong through the NPC decision on a national security law: “Its implementation will undoubtedly have far-reaching implications on … the systematic restructuring (zhidu chonggou) of ‘one country, two systems’ and the political ecology of Hong Kong.” It is quite clear from this argument and its author’s status that the law was not conceived as a technical arrangement but a “systematic restructuring.”
This notion was echoed by the deputy director of the State Council’s Hong Kong and Macao Affairs Office, Zhang Xiaoming, in a speech (see the original and an unofficial translation) ostensibly delivered to mark the 30th anniversary of the promulgation of the Basic Law. It is worth quoting a lengthy extract:
So, what is the main problem of Hong Kong now? The answer will undoubtedly be a matter of opinion. In my view, the main problem of Hong Kong is not the economy, nor is it the housing, employment and other livelihood problems that are troubling the grassroots, nor is it the interests of the grassroots. It is not a social problem, such as the solidification of social classes and the difficulty of upward mobility for young people, but a political problem. The central manifestation of this is that there are serious differences and even confrontations over the fundamental question of what kind of Hong Kong we want to build. We want to build a Hong Kong that truly implements “one country, two systems” and “Hong Kong people ruling Hong Kong”, with a high degree of autonomy, while maintaining long-term prosperity and stability. On the other hand, the opposition and the external forces behind them have attempted to turn Hong Kong into an independent or semi-independent political entity, into an anti-Chinese and anti-communist political entity, and into a political entity with a strong political base. As a bridgehead, Hong Kong has become a pawn of external forces to check and curb China’s development. This is the major contradiction affecting the full and accurate implementation of “one country, two systems” and the maintenance of Hong Kong’s long-term prosperity and stability, and it is a major factor in the political life of Hong Kong society. This major contradiction determines the chaos and the intensification of some social conflicts.… In essence, this is a political confrontation deliberately created by anti-Chinese and anti-communist forces inside and outside Hong Kong. Their goal is not only to destabilize Hong Kong and seize power in Hong Kong, but also to overthrow the state power and subvert the leadership of the Chinese Communist Party.
This speech is particularly significant because mainland officials have routinely dismissed the Hong Kong protests as motivated simply by “livelihood” issues. Zhang on the contrary argues that at its heart is an issue of sovereignty. In so doing, he also quotes the political scientist Zheng Yongnian as calling for Hong Kong’s “second return” to the motherland (in the 1980s, it was argued that Hongkongers’ hearts had not returned to China). This is consistent with Jiang Shigong’s idea of a restructuring of Hong Kong’s system of governance through the assertion of “substantive sovereignty.”
It is therefore unsurprising to see in Hong Kong’s national security law echoes of a broader political project. On 29 July 2019, at the height of the protests against the extradition law, the State Council’s Hong Kong and Macao Affairs Office in a reply to a journalist’s question, laid down “three bottom lines,” rumored to have been formulated by Xi Jinping himself at the July Politburo meeting: the protests must not “endanger national security or sovereignty, challenge the power of the central government or the authority of the Basic Law, or use Hong Kong as a base for activities that infiltrate or undermine the mainland.” Similar language was included in the communiqué published after the 4th Plenum of the 19th Central Committee in early November, including a reference to “comprehensive jurisdiction” and a call to “establish and strengthen national security legislation” for Hong Kong. This was probably one of the most prominent mentions of Hong Kong in a Plenum communiqué, since the Plenum is a Party organ, and Hong Kong has traditionally been dealt with through relevant State Council organs.
Zhang Xiaoming presented his own lengthy exegesis of the communiqué and its implications for a new Hong Kong policy a few days later (published in People’s Daily in December), outlining the Central Government’s ten powers over Hong Kong, including in particular the power to promulgate, revise and interpret the Basic Law, the power to supervise the autonomy of special administrative regions, in particular whether their legislative institutions and laws conform to the Basic Law, and the power to legislate directly by adding laws to Annex 3 of the Basic Law. At the time, no one predicted or even suggested the possibility of the National People’s Congress imposing legislation on Hong Kong directly. Yet the strong implication of the Party and Zhang’s own comments should have alerted observers to a change in tactics. Subsequently, in December 2019, when Chief Executive Carrie Lam made her annual duty visit to Beijing, it was reported that the Politburo member overseeing Public Security, Zhao Kezhi, had taken part in the meeting of the Leading Group for Hong Kong and Macao, another Party organ.
As of yet, the national security law remains partly shrouded in mystery. How the four crimes of separatism, subversion, terrorism, and collusion with foreign forces will be defined will be announced shortly. Several aspects related to enforcement have already raised grave concerns, including the fact that mainland authorities have reserved the right to exercise jurisdiction over a “very small number of cases”; that transfer of suspects to the mainland cannot be excluded; that a special prosecutor will be appointed within the Hong Kong system; that judges will be specifically designated by the Chief Executive; that the national security law will override local legislation in case of discrepancy; and that the ultimate right to interpret it rests only with the NPC.
Equally significant is the structural shift contained in the NPC decision. It establishes a local National Security Committee to be chaired by the Chief Executive, but also including an “advisor” appointed by the central government. It further establishes a National Security Commissioner in Hong Kong, a central government organ, outside the scope of Article 22 of the Basic Law (which prevents central government offices from intervening in Hong Kong affairs). A source has suggested that this office “would be of vice-ministerial level and report directly to the Central National Security Commission of the Communist Party, which is led by President Xi Jinping. The source added that later this month the Politburo Standing Committee would name a senior security official as Beijing’s national security commissioner in Hong Kong.” In other words, a party organ would be directly implicated in the governance of Hong Kong, one that was created specifically by Xi Jinping to strengthen party control over national security (see analysis by David M. Lampton and Sheena Chesnut Greitens). Xinhua news agency confirmed that the Leading Small Group on Hong Kong and Macao had been elevated to the rank of Central Leading Group, and that Zhao Kezhi, head of public security, served as deputy director of the group, at the same level as the head of the Hong Kong and Macao Affairs Office. Whereas the Party has rarely been directly implicated in governing Hong Kong, it now appears to be in an openly steering position.
One cannot help but recall Jiang Shigong’s conclusion to his lengthy eulogy on “Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era,” written in early 2018 (painstakingly translated by David Ownby):
Following the introduction of the rule of law [under Deng Xiaoping], a latent tension appeared between it and Party leadership. Some people argued that strengthening the rule of law meant strengthening the absolute authority of the state system in constitutional and legal terms, and hence advocated the so-called ‘realization of the People’s Congress as the highest power’, bringing out ‘judicial independence’ and the judicialization of the Constitution. They further proposed a debate on the so-called question of ‘Party domination’ versus ‘legal domination’, implicitly calling into question the Party’s leadership of the state. In addition, the development of the rule of law led to calls for the protection of human rights, and some movements with political demands used the formal development of ‘human rights’ and ‘rule of law’ and the notion that the ‘rule of law’ would lead to ‘democracy’ to put forth a new strategy leading to ‘political democratization’.… It was in the precise context of this problem, a solution for which long had been sought without success in either theory or practice, that Xi Jinping, at the Third Plenum of the Eighteenth Party Congress, proposed the theory of the modernization of the state governance system and governance capacity. … One might say that the core of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era is the new system for comprehensive Party leadership of the state [highlight added] on the theoretical and institutional level that it proposes. This new Party-state system is undoubtedly an important organizational part of the ‘China solution’, different both from the liberal democratic systems of Western capitalism, and from the old Party-state system of the Soviet model, and has become a new system that fits the economic base of Socialism with Chinese Characteristics.
This passage lays out Jiang’s view of how renewed party leadership can counteract the subversive potential contained in China legal reforms, thanks to his notion of “comprehensive party leadership of the state.” The same formula can be applied, albeit perhaps in a lighter dose, to Hong Kong, which in itself epitomized the challenge that Jiang sees in the tension between sovereignty and rule of law.
The historian Matthew Johnson has recently discussed the rise of the “national security” paradigm in Chinese elite political discourse since the 1980s, and in particular since the establishment of Xi Jinping’s National Security Commission in 2014. He argues that the Mao-era anxiety about “peaceful evolution” (the sugar-coated bullets of the bourgeoisie) has been actively reworked by Xi Jinping’s close advisor and political scientist in residence Wang Huning under the new comprehensive framework of “cultural security,” encompassing ideology, information management, as well as domestic and foreign propaganda, with a view to reshaping global governance and pushing back against the dominance of liberal norms. In this context, while the repression enabled by the new national security law in Hong Kong may be less pervasive than in mainland China, it should undoubtedly be viewed within the same political, legal, and philosophical framework, in which sovereignty and party ideology (friend/enemy distinction) take precedence over liberal definitions of legality, as argued many decades ago by Carl Schmitt.
[1] Chan is alluding to (1) the disqualification of candidates for elections based on the returning officer’s assessment of whether they would be able to take a “sincere” oath of office; (2) the Hong Kong government’s decision to cede full territorial sovereignty over the High Speed Rail line from Canton to Hong Kong and its terminal in Kowloon to the Chinese authorities; and (3) a reinterpretation of the status of the Central Government Liaison Office which places it outside the restrictions of the Basic Law (Article 22).
Photo Credit: Dong Fang, 18th National Congress of the Communist Party of China, via Wikimedia Commons, Public Domain.