With Beijing directly invoking a national security law in Hong Kong, leading legal scholar Professor Jerome Cohen called it a "mortal wound" to the one country, two systems, with both sides- Beijing and Hong Kong- will bear the political costs.
The following is a Q&A between CitizenNews and Prof. Cohen.
Q1. How do you view Beijing's approach over governing Hong Kong? In the past, the controversial national security law is enacted locally within Hong Kong, what does it mean when Beijing walking back from this promise?
A: Obviously the current effort to enact national security legislation governing Hong Kong is not Beijing's preferred way but is a mark of desperation. If it had been attempted much earlier in the post-'97 period, especially before the Article 23 fiasco in Hong Kong in 2003, it might have passed legal muster without creating as much consternation as it does now.
At this time, however, coming in the wake of the failures to enact relevant security legislation via Article 23 and the inability to do so in the future, Beijing's current move certainly looks like a clever trick that inevitably inspires even greater distrust than ever in the NPC (National People's Congress) Standing Committee's interpretations of the Basic Law.
The NPC Standing Committee will prevail in legal terms, given the wording and structure of the Basic Law, the provisions for its interpretation and the way those provisions have been applied in recent years. But the political costs to the Central Government and the people of Hong Kong will be very high.
Q2. What is the implication for Hong Kong's autonomy, given Beijing will now enact laws to be directly applied in Hong Kong? Are we seeing the death or end of "one country, two systems"? What should be the way forward between Beijing and Hong Kong?
This will not be the formal end of one country, two systems, but it is surely a mortal wound to the living, meaningful system that many had been misled into hoping for.
Q3. US Secretary of State Mike Pompeo has repeatedly warned about Beijing's crackdown in the past few weeks, which all points to deterrence against such a drastic law. But if Beijing is to press on with the new national security law anyway, do you think Hong Kong's special status under the US-Hong Kong Act should be revoked, and sanctions should be invoked under the Hong Kong Human Rights and Democracy Act?
A: There are many ways that the United States, the UK and other democratic countries can strongly react to Beijing's latest legal legerdemain. Perhaps Washington will invoke some aspects of existing federal legislation relating to Hong Kong, but I hope it does not act in ways that will penalize Hong Kong’s already long-suffering people rather than the regime that increasingly dictates to them.
Q4: What's the solution, or does it inevitably require a political solution or some sense of good will from Beijing to de-escalate the situation?
A: The solution? The "final solution", to invoke a sinister Hitlerian term, is the acceleration of Hong Kong's transformation into "another Chinese city" long before 2047. I don't think Beijing is reeking of "good will" at this point.
Article 4 of the draft NPC Decision promises the establishment in Hong Kong by "relevant national security organs" of "agencies" that will improve "enforcement mechanisms" to guarantee national security in terms that the Ministry of Public Security and the Ministry of National Security have made well-known throughout the rest of China. HK should prepare to welcome the varieties of arbitrary detention that Beijing has perfected.
Prof. Jerome Cohen is a law professor at the New York University, the founding director of its US-Asia Law Institute and Adjunct Senior Fellow at the Council on Foreign Relations.