As I mentioned a few weeks back, I was in Hong Kong in December for, among other things, a conference on “Academic Freedom in Asia.” There I met Professor Cora Chan, a public law scholar at Hong Kong University, who kindly sent me her bracing paper on “Scholarship in Times of Constitutional Transformation: A View from Hong Kong,” Human Rights Law Review 24 (2023): 1-15. If you are interested in academic freedom, you should read it.

Some background: when Hong Kong became a “Special Administrative Region” of China, the Hong Kong Basic Law provided (Article 137), in relevant part, that,

Educational institutions of all kinds may retain their autonomy and enjoy academic freedom. They may continue to recruit staff and use teaching materials from outside the Hong Kong Special Administrative Region.

Article 34 of the Basic Law also provides that, “Hong Kong residents shall have freedom to engage in academic research, literary and artistic creation, and other cultural activities.” Professor Chan tells me these provisions have not been the subject of much litigation, but that the Hong Kong Court of First Instance has stated that Article 137,

recognises academic freedom as a self-contained freedom, one that is vested in Hong Kong’s educational institutions, enabling them to determine for themselves on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study… In our view, academic freedom vested in an educational institution must therefore extend not simply to the administration of that institution but to the faculty of academics too, giving it freedom to pursue the search for knowledge without fear of external sanction.

These robust provisions have not yet been tested in the new era in Hong Kong that began with the Beijing-imposed National Security Law in 2020, which Professor Chan discusses in some detail, as well as the revival of colonial era sedition laws since then. As Professor Chan observes, these changes “have transformed Hong Kong’s legal order from a liberal order into an authoritarian order resembling the dual state,” (4) proposed originally to describe the legal regime under Nazism. As Professor Chan usefully explains the idea:

The dual state is a bifurcated legal order, with one domain that is unchecked by legal guarantees (the prerogative domain) and another that is governed by legal rules (the normative domain). The dual state is an authoritarian legal order because the political authorities have absolute power to decide which of the two domains a given matter is to be governed by. (4)

The “dual state” character of law in Hong Kong is evidenced by the fact that “the conviction rate in national security cases currently stands at 100 per cent at all levels of the court, far higher than the overall confiction rates of around 70-90 per cent across different court levels” (4). This is not lost on defendants: “94 percent of those charged under the National Security Law pled guilty in the District Court…in striking contrast to the overall District Court guilty rate of 78 percent” (5). The fact that the Beijing-appointed Chief Executive of Hong Kong appoints the judges who hear National Security Law cases obviously contributes to the sense that National Security Law cases are part of the prerogative domain.

The National Security Law imposed by Beijing would be “void for vagueness” under American constitutional law, and for good reasons, as Professor Chan documents. Does this article itself violate the National Security Law or the newly animated sedition laws? It’s hard to know, which sums up the problem.

The academic freedom of scholars in many U.S. states is under threat from legislation, as we have had occasion to document many times. But what is happening in Hong Kong is an object lesson that things could also get much worse.