Arina Lopukhina

At the end of May, the 13th National People’s Congress introduced a controversial security law, aimed to prevent "secession, subversion, terrorism, and foreign interference" in Hong Kong. The legislation was swiftly finalized in deep secrecy, and on June 30, one day before the anniversary of Hong Kong’s handover to China, Xi Jinping signed the provision. Unlike the failed attempts to introduce pro-Beijing security regulations in 2003 or 2019, the new law could be considered the most blatantly suppressive attempt of the mainland government to restrict the freedoms of Hong Kong with both legislative and structural means. Comprised of over sixty articles, the law grants the People’s Republic of China authorities the right to apply a wide range of punishments to those who oppose and criticize the government’s actions. Furthermore, the classification of anti-PRC actions remains partially vague, enabling to prosecute Hong Kong’s pro-democracy activists for any type of self-expression.

Most importantly, however, it is debatable whether the NPC could legitimately pass such legislation in the first place. The reason for such ambiguity lies in the PRC’s decision to disregard the Sino-British Joint Declaration (1985), which originated as the main legal document for setting out arrangements regarding Hong Kong’s status. While the UK continues to consider the treaty to be legally valid, China does not wish to adhere to this vision, claiming the Declaration to be simply a historical document with no practical significance. So, the 1997 “one state, two systems” policy, established in the 1985 treaty and set to last until 2047, guarantees the preservation of the region’s distinct economic and legal systems unless specified otherwise in Annex III of Hong Kong’s mini-constitution, the Basic Law. The newly introduced extensive security measures, however, do not fall under the content of the above-mentioned part of Hong Kong’s constitution, and neither can they be forced upon the region by the National People’s Congress. This is because Article 23 of the Basic Law outlines that Hong Kong’s domestic security matters, although mandatory to implement, should be subject to regional and not national policy-making. Therefore, the clash between the interpretations of the 1985 international treaty gives the mainland government a chance to proceed with diminishing Hong Kong’s sovereign rule even before the expiration of the agreement in 2047.

Historically, mainland China has not been fond of Hong Kong allowing civil liberties within a unique judicial system, which enables the autonomous region to preserve a drastically different socio-economic order compared to the rest of the country. Even after the formal end of the British rule in 1997 and reversion to Chinese sovereignty, Hong Kong still employs the common law system and has a de-facto constitution. Moreover, the city residents continuously push the local government to introduce direct elections for executive positions which are purposefully kept under the control of the Communist Party of China and organize mass demonstrations against PRC’s authoritarian measures, hoping to achieve further independence from the mainland. In response, the mainland government has been trying to get a firmer grip on Hong Kong under the excuse of introducing fierce security laws, similar to the ones enacted over the PRC’s territories. Referring to Article 23 of the Basic Law which obliges the region to enact threat-preventive regulations against jeopardizing the rule of the Central People’s Government (CPG), the 2003 National Security Bill was the first significant attempt to transfer more power over Hong Kong’s domestic security to Beijing. However, public dissatisfaction with the proposal overpowered the fear of SARS outbreak: in the end, demonstrations forced the regional government to shelve the security matter. Last year, a similar scenario occurred with the Fugitive Offenders Ordinance amendment (a.k.a. the 2019 Hong Kong Extradition Bill), which meant to grant the mainland authorities more power over criminal justice. Once again, blazing protests became the main reason why the bill was withdrawn. This time, however, such a strong anti-CPG reaction and the acute rise of the pro-democracy movement provoked a ruthless response from the mainland. Now, Hong Kong’s hands are tied because the new law was imposed under Article 18 of the Basic Law, which confirms that the National Congress holds the right to legislate over matters of defense and international affairs.

Mainly, the content of the new legislation pinpoints the following regulations:

• Requiring the city authorities to prevent actions and activities which threaten China’s national security;
• Requiring the three branches of Hong Kong’s government (judicial, legislative, and executive) to stop any anti-governmental activities;
• Banishing foreign actors and organizations from intervening in/meddling with Hong Kong’s and China’s domestic affairs;
• Introducing severe punishments for security-threatening crimes, up to life imprisonment;
• Establishing an office of the Ministry of State Security (read: the state intelligence) in the region with full impunity (opened a week after the law was passed);
• Establishing a new fully mainland-controlled body, Office for Safeguarding National Security in Hong Kong, for the sole purpose of overseeing the domestic affairs;
• Granting the NPC full authority to legislate over national security in Hong Kong;
• Requiring the city authorities to report on the progress of prevention measures to the mainland government;

The reforms clearly demonstrate an expansion of the mainland’s authority over Hong Kong’s inner affairs, yet also suggest potential issues with the government’s accountability. Firstly, Articles 41, 44, and 46 nurture a legal bias, allowing trials to be held secretly and without the jury's presence, as well as granting the Hong Kong's chief executives the right to pick judges for particular cases. Moreover, some of the provisions contain vague phrasing, such as Article 29, that could enable the mainland authorities to file cases against a large scope of misdemeanors. The article condemns “provoking <…> hatred among Hong Kong residents towards the Central People’s Government or the Government of the Region”, while it is rather hard to assess what is considered “hatred” and what would be counted for its expression. Also, Article 55 delegates the mainland authorities to investigate “complex” and “serious” matters without clarifying which are deemed to be such, thus letting the PRC take control over nearly any case.

Practically speaking, under the new law, any anti-Beijing comments or actions could be classified as espionage or terrorism. As one can imagine, such overwhelming control from the mainland would be employed mainly for penalizing those who have previously taken part in protests or continues to oppose China’s rule in any shape or form, ceasing the freedom of speech. For instance, Professor Johannes Chan, a legal scholar at the University of Hong Kong, expressed concerns over the security law’s invasiveness, stating that it is likely to distort the region’s judicial system, making it resemble the mainland’s one. Thus, Hong Kong’s unique common law jurisdiction might be instinct over the following years. Additionally, according to Charles Low, the chairman of the Internet Society non-profit organization, the new regulations showed that the fears regarding the extension of the “Great Firewall” to Hong Kong are coming true, thus further jeopardizing the residents’ freedom of expression and access to information.

Another dreadful outcome of forcing Hong Kong to play by the PRC’s rules is hampering affairs with foreign countries and thus losing the reputation of Asia’s financial hub. With around 80% of Hong Kong’s exports heading outside China, this could result in a sharp decline in the city’s economy. For example, the USA, one of Hong Kong’s main economic partners, already revised the trading regulations, as the US-Hong Kong Policy Act only remains active under the condition of Hong Kong preserving independence from mainland China in all aspects but foreign political and military power. Two days after the law was enacted, the USA introduced sanctions for banks that do business with Chinese officials. Also, with the threat to the freedom of Internet use, TikTok has already announced it would seize operating in Hong Kong, so now Apple, Google, and other major companies are pressured to decide on whether to follow the same path. As the chances of them withdrawing from the city are not trivial, Hong Kong is risking losing its reputation of a telecom hub in the region. Lastly, fearing dangerous repercussions from the anti-free speech regulations, prominent media outlets shifted their offices from Hong Kong to neighboring states. So far, The New York Times, The Wall Street Journal, the AFP, and some others have relocated their personnel for safety reasons. Thus, the new legislature not only puts civil rights and freedoms in danger but also hinders the financial prosperity of the region.

Overall, the situation appears to be highly concerning and complex to resolve in Hong Kong’s favor. As previously mentioned, over the last two decades, the Hong Kong population has relied on mass protests to combat mainland China’s predatory attempts to seize the region’s sovereignty. However, the Covid-19 setting (especially the recent outbreak) does not quite allow to repeat the scenarios of 2003 or 2019. Not only the quarantine regulations prohibit public gatherings, but also the police were instructed to brutally suppress emerging unrests and detains anyone who showcases pro-independence views. Nonetheless, the Hong Kong residents are hopeful about eventually gaining their freedom back. Unable to voice their noncompliance literally, over 600,000 people went to cast their vote in the primary elections last week. Unsurprisingly, the majority delegated pro-democracy candidates, who have shown support for the mass demonstrations, to run in the official Hong Kong Legislative Council election in September. Therefore, there is a glimpse of hope that the pro-democracy camp would receive a sufficient number of seats in the council to be able to initiate a change from within the system.

It all began on January 15, 2020, when President Putin held an annual meeting with the Russian government, expressing the urgent need for changing the Constitution. At first glance, his proposal did not sound so detrimental: the primary objective were shifting the balance of political powers from a president’s hands into a prime-minister’s, restricting the number of presidential terms to two (a friendly reminder: Putin is currently serving his fourth term), reducing the number of judges in the Constitutional Court, and supposedly making the parliament more influential. Yet, as days went by, more and more novelties resurfaced; to add insult to injury, Putin insisted on incorporating moral ideological aspects into the new constitution, namely highlighting the role of God and undermining non-heterosexual relationships, as well as suggested to give more prerogatives to the federal  constituent entities, while prohibiting their secession from the Russian Federation. Additionally, as Henry Reznik, a notable Russian legal expert pointed out, one of the most disturbing amendment is concerned with the restructuring the Constitutional Court and establishing the supremacy of Russian domestic law over international regulations, which could potentially aggravate the already existing conflicts in Russia’s foreign affairs.

Now, two months later, it is safe to say that the initial proposal looks nothing like the final draft. Most of the original ideas regarding diminishing presidential prerogatives were dismissed, and the events of March 11 perfectly explain why: senator Tereshkova (also the first woman in space) called for a new amendment to zero out Putin’s previous terms and potentially exclude any terms restrictions from the Constitution. In response, Putin himself appeared at the Duma Hall an hour later with a pre-written speech and gladly accepted the first part of Tereshkova’s amendment, shyly stating that life-long presidential term would seem “too undemocratic”. While at the beginning there was still hope for a moderate development of Putin’s grand plan for remastering the Constitution, the recent turbulent political events, continuous downfall of the ruble, increase in oppositionist protests, spiced up with the coronavirus pandemic led to harsher and prompter actions for securing Putin’s reign up until the year of 2036.

The Amending Procedure

Although it might be hard to believe given the contemporary circumstances, the Russian Constitution of 1993 proclaims Russia as a secular democratic state with a semi-presidential form of government, which aims at protecting individual rights and freedoms. The 1993 Constitution is a rigid one, yet, the mechanism for amending the document is perplexing and ambiguous. As chapters 1,2 and 9, which deal with general provisions, rights of citizens and amending procedures respectively, can only be altered with the approval of the Constitutional Assembly or a public referendum, the other chapters are relatively easy to modify through administrative procedures (as the 2014 amendments show). However, only the President and legislative bodies are entitled to propose reforms to the Constitution, and, in the contemporary event, the call for amendments was raised by Putin himself, so he is the only one submitting potential alterations which are supposed to be approved in the national referendum scheduled for April 22.

However, with the exponential decline in Putin’s approval ratings (now, only roughly 35% express trust in the Leader) and a general worsening of both Russia’s domestic and international political environment, it has been decided not to wait for such a long time and speed up the procedure. Instead of acting out a coherent process of passing the amendments for approval through the parliament and then waiting for the outcome of the referendum, as outlined in the Constitution, the order has been completely disrupted. By March, the bill swiftly passed the State Duma with an absolute majority, but then Tereshkova’s announcement (an interesting PR move) happened and turned the rules of the game upside down. Initially, Putin claimed to be ready to sign the list of amendments on the symbolic date of March 18, the anniversary of Annexation of Crimea, yet, for an unknown reason, the plan shifted. Together with Tereshkova’s proposal, the amendments were unanimously approved by representatives of all the 85 federal  constituent entities in the upper chamber and on Saturday, March 14, Putin signed the bill and called for assembling the Constitutional Court in order to “verify the lawfulness of amendments”. So, instead of creating the Constitutional Assembly as instructed in the Constitution of 1993 (although there are no clear references to whom it shall be composed of), it has been ordered to perform the review of amendments to the closest relevant institution – the Constitutional Court of Russia. After the weekend-long court sitting, which occurred behind closed doors, it was ruled that the amendments did not contradict Russia’s legal order. In this chain of events, a lot of aspects seem dubious and questionable but not enabling the public to monitor the Court’s work is one of the most blatant examples of opaque domestic affairs, which deprive Russian citizens of the information on the ground-breaking constitutional regulations, causing a backlash among hundreds of Russia’s activists, scholars, and journalists. Thus, the attempts to lure people into believing that the amendments are merely an expression of the nation’s will pale next to the blunt misconduct of various governmental organs.

Lastly, a month before the referendum, the deal is practically done, and there is hardly any sense in holding the public vote. Even though the Constitution requires at least 50% of the population to vote in favor of the amendments, it seems like most of them will be passed regardless of the referendum’s outcome. The official Kremlin’s web source clarifies that  only amendments for chapters 3 to 8 require the referendum to enter into force; thus, the rest could be considered as valid after the bill passes the Constitutional Court and without any public approval. Although the referendum is now the only obstacle on the way of the new Constitution, yet a weak one, as Russia has a long history of fabricating election results when needed. So, now all is required is to wait until April 22 without letting anyone or anything to sabotage the current setting. Luckily, COVID-19 came into play, which allowed passing an emergency law prohibiting public gatherings of more than 5,000 people due to the virus. One does not need to be a doctor to see how the limit would not practically help prevent the spread of the virus, while on the other hand would allow the officials to conveniently avoid mass protests against the nearly-adopted reforms.

The Proposal of Amendments

Although now the true goal of the constitutional reforms is painfully clear, at the beginning of the process, there was still an attempt to create the impression of checks and balances by establishing the Citizens’ Commission for the preparation and review of amendments. The main concern was, however, that this organ predominantly consisted of social activists and notable citizens who were quite distant from legal studies. The list included movie directors (K. Shakhnozarov), doctors (L. Roshal), former athletes (E. Isinbayeva, who, as turned out, had not previously read the Constitution in her life), businessmen (E. Kaspersky), and a few parliament members. Frankly, the efficiency and, most importantly, accountability of proposals and comments issued by such a focus group is quite questionable.

So, the responsibility for drafting new amendments merely rests on the shoulders of the above-mentioned commission and the current president. Yet, it is hard to identify whether any proposals have come from the Commission, as the Russian news reports on the perspective amendments indicate only Putin’s personal involvement in the drafting process. The final bill of amendments implies that dozens of articles are to be altered or abolished, imposing the following:

• the State Duma’s approval of the Prime Minister's, Deputy Prime Ministers’, and Federal Ministers’ candidacies proposed by the President is no longer deemed necessary, thus eliminating the motion of confidence;
• the number of the Federation Council (the upper house of Parliament) members proposed by the President is extended from 17 people to 30;
• heads of law enforcement bodies shall be appointed by the President;
• a presidential candidate must reside in the RF for over 25 years (now 10 years);
• a former President possesses full immunity from prosecution;

also, an ex-President can become a life-long senator, if they wish;

• increasing the role of the State Council (now it only possesses advisory functions and is not included in the Constitution);
• removing the “in a row” clause, thus limiting the maximum number of presidential terms to two.

yet, Tereshkova’s proposal was gladly included, allowing a candidate to run for the presidency “regardless of the number of terms which that person held at the time when the amendment came into force.”;

• a President can suspend judges from both the Constitutional and Supreme Courts in case of defamation;

also, the Federation Council now has to go through a more meticulous process for rejecting the presidential nominees to the Constitutional Court;

the number of Constitutional Court judges reduced from 19 to 11;

• the Russian laws should take precedence over international law;
• allowing the Constitutional Court to check the constitutionality of laws adopted by the Federal Assembly, if the President deems so necessary before signing;
• President, Ministers, judges, heads of federal constituent entities are prohibited from possessing foreign citizenships or residence permits;
• the minimum wage cannot be lower than the subsistence minimum;
• regular indexation of pensions;
• additionally, the above-mentioned amendment proposals regarding God (still unclear which one they had in mind while writing that), heterosexual marriages, the claim that “Russia has emerged from the USSR and has to respect the Soviet history and values”, as well as some other obscure elements of modern-day Russian propaganda have been implemented into Chapter 1 of the new Constitution.

If two months ago Putin reassured the nation that he would not attempt to extend presidential powers, the opposite occurred. Instead of expanding parliamentary influence over state legislation, as promised, Putin has gifted himself even more extensive control over the composition of the governmental apparatus, turning the Federation Council into more of a pro-presidential-puppet than ever before. As for the lower chamber, Russia has a multi-party system, however, since the beginning of Putin’s reign, United Russia has steadily had over 70% of seats in the State Duma which merely liquidated competitiveness in the Parliament. However, after the amendments, neither the loyalty of the party nor the composition of the Duma will play such an important role, as the President will no longer need the motion of no-confidence for dismissal of the Prime Minister or other members of the Cabinet. Elena Lykyanova, a law professor at the HSE, suspects that the reforms will conveniently allow to avoid re-electing the entire Cabinet in case the PM leaves, as the President could simply appoint a different candidate for replacement -- again, without the Parliament’s confidence vote. Therefore, the new Constitution will allow Putin to worry less about potential unrest in the main legislative body of Russia, although history shows that it has already been tamed for the most part.

With regard to the supremacy of legal sources, the most thought-provoking change is concerned with the role of domestic laws in relation to the international law. Given the recent turbulent history with the annexation of Crimea and following economic sanctions, as well as the infamous Yukos case and the MH17 plane crash investigation, it would be convenient for Russia to officially disregard the internationally-binding legislation and international courts’ rulings to avoid repercussions. Furthermore, oftentimes the International Court of Human Rights becomes the last resort for Russian political prisoners to seek justice, so confirming the supremacy of Russian legislation would make it easier to jail protestors and critics of the regime. The amended Constitution would vest authority to define the legal relevance of international laws and treaties with respect to the Russian law on the Constitutional Court. Therefore, if the Court finds a foreign norm inconsistent with the Russian Constitution this would mean that Russia abstains. Together with the fact that there will be less Constitutional Court judges, yet they are still nominated by the President (and dismissed for vague reasons only by him), it would translate into excessive presidential influence on one of the key judicial bodies in the country.

Overall, after two months since Putin’s announcement, it appears that what seemed at first an attempt to liberalize and improve the governmental apparatus is, in reality, no more than just a thoroughly-planned maneuver to prolong his time in the office. The ambiguous plan for amending the Constitution also showcases the general reluctance for following the rigid procedures (especially for organizing the public referendum) and complete disregard of fundamental constitutional principles formed in 1993. Just like the first Russian Constitution was written in a way for Yeltsin to have the means for  holding onto power and not allowing the Communist Party to return, the newly-amended Constitution would also be primarily accommodating one single person’s needs. Yet, this time around, this is not done for preventing the return of the Soviet regime but rather for reversing Russia into the USSR-inspired state.