By: City University of Hong Kong School of Law
Public Law and Human Rights Forum
Centre for Chinese and Comparative Law
On 28 May 2020, the Third Plenary Meeting of the 13th National People’s Congress (NPC) passed the Decision on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region (HKSAR) to Safeguard National Security (hereafter “NPC Decision”). According to this NPC Decision, when needed, relevant national security organs of the Central People’s Government (CPG) may set up agencies in the HKSAR; the NPC Standing Committee (NPCSC) is authorised to enact a law for the HKSAR to safeguard national security (“National Security Law for the HKSAR”, hereafter “NSL”) which shall be listed in Annex III of Basic Law of the HKSAR and applied in the HKSAR by way of promulgation.
The NPC Decision has attracted extensive attention and aroused great concerns worldwide. Naturally, it brings forth many academic issues that have to be examined in depth urgently.
On 5 June 2020, the Public Law and Human Rights Forum (CPLR) and the Centre for Chinese and Comparative Law (RCCL) of the School of Law of City University of Hong Kong jointly organized an online symposium on the “National Security Law for the HKSAR”. The symposium brought together leading experts and lawyers from mainland China, Hong Kong, Macau and foreign countries to discuss the relevant academic issues relating to the NPC Decision and the forthcoming NSL. A total of 14 speakers presented insightful and thought-provoking views at the symposium. Following the Chatham House Rule, below is the summary of these presentations while the identities and affiliations of these presenters are not revealed.
Normative Analysis of the NPC Decision
One speaker opined that due attention should be paid to the wording of the NPC Decision in order to fully understand its normative connotations. For instance, Article 6 of the NPC Decision authorizes the NPCSC to enact relevant laws to “effectively prevent, stop, and punish any secession, subversion of state power, organization of terrorist activities, and other acts and activities that seriously endanger national security”. The word “seriously” here should be taken literally, meaning that minor acts and insignificant activities will not be covered under the NPC Decision. In other words, the targets of the NSL are acts and activities that seriously endanger national security which should be prevented, stopped and punished. Therefore, there is no need for the people in Hong Kong to worry too much.
A speaker pointed out that the Introduction of the NPC Decision specifies that the Decision was made according to Article 31 and Article 62(2), (14) and (16) of the Constitution of the People’s Republic of China (PRC Constitution). This was the first time in the past 30 years that the NPC has quoted provisions of the PRC Constitution as the legal basis of its “HK-related decisions” , which further affirms the notion that “both the PRC Constitution and the Basic Law jointly form the constitutional basis of the HKSAR”. A speaker commented that such a stipulation means that the CPG is consciously making use of the PRC Constitution to deal with issues relating to the HKSAR, which definitely will pose challenge to the traditional belief that the Basic Law serves the role of a “firewall” between Beijing and the HKSAR. This conceptual change will bring up new problems and controversies.
A speaker maintained that after comparing the NPC Decision with Article 23 of the Basic Law, one would find that the NSL to be formulated by the NPCSC will not replace the Article 23-related legislation to be formulated by the HKSAR legislature. This is because there is not much overlapping between the four kinds of offences listed in the NPC Decision (namely, secession, subversion of state power, organization of terrorist activities and activities of foreign and overseas forces to interfere in the affairs of the HKSAR) and the seven offences listed in Article 23 of the Basic Law (namely, treason, secession, sedition, subversion against the CPG, theft of state secrets, the conducting of political activities by foreign political organizations or bodies in the HKSAR, and the establishment of ties with foreign political organizations and bodies by political organizations or bodies of the HKSAR). In other words, there is still room for the HKSAR to enact laws on its own.
One speaker observed that, while only the word “acts” was used in the original draft of the NPC Decision, all references to this word were subsequently replaced by the term “acts and activities” in the finally adopted NPC Decision in order to give the NPCSC more power to legislate on the relevant matters. This is because if the words “and activities” were not included in the NPC Decision, the NPCSC will not have the authority to legislate to prohibit the relevant activities. The replacement of the word “acts” with the term “acts and activities” in the NPC Decision did arouse great concerns and speculation. Another speaker however remarked that such a replacement is actually unnecessary because “activity” itself is a kind of “act”, and the phrase “prevent, stop, and punish acts and activities that endanger national security according to law” is too cumbersome in language and grammatically problematic. He hoped that in formulating the future NSL, the NPCSC should use precise legal language to avoid causing ambiguities and confusions in the law.
Procedures of the NPCSC Legislation
Several speakers agreed that the NPCSC should conduct public consultation and listen to the views of the people in Hong Kong when enacting the NSL. A speaker pointed out that according to Article 36 of the Legislation Law of the People’s Republic of China (Legislation Law), “[f]or a bill on the agenda of a session of the Standing Committee, the Law Committee, the relevant specialized committee, and the operating divisions of the Standing Committee shall hear the opinions of all the parties concerned”. Following this requirement, he argued, the NPCSC should consult all sectors of Hong Kong society. However, another speaker doubted if Article 36 of the Legislation Law is applicable this time because the NPCSC’s formulation of the NSL for the HKSAR is something unprecedented, and the Legislation Law does not expressly provide the procedure for the Central Authorities to follow when it makes laws for its special administrative regions.
A speaker pointed out that the effectiveness of the law depends on the extent of its public acceptance. Therefore the public in Hong Kong should be consulted in the making of laws that have significant social impact, such as the NSL.
One speaker hoped that the consultation could be done before the promulgation of the law (the previous practice was that, members of the Basic Law Committee would be consulted after the national law was promulgated and before the law was to be listed in Annex III of the Basic Law) and the scope of consultation could be expanded further instead of merely including Hong Kong deputies to the NPC, members of the Chinese People’s Political Consultative Committee, officials of the HKSAR Government and Basic Law Committee members.
A speaker believed that if the CPG conducts public consultation in Hong Kong with regard to the NSL, it will be helpful not only in removing the worries of the Hong Kong people, but also in sending a strong message to the international community that China has been insisting on “ruling the country in accordance with law” and “One Country, Two Systems”.
A speaker remarked that according to Article 29 of the Legislation Law, “[a] bill that has been placed on the agenda of the session of the Standing Committee, in general, shall be deliberated three times at the sessions of the Standing Committee before being put to vote”. Though there may be exceptions to the rule of “deliberation at three sessions”, in formulating the NSLfor the HKSAR, however, the NPCSC should strictly follow this rule, so as to ensure procedural justice.
Principles of the NPCSC Legislation
In his speech delivered at the NPC Meeting on 22 May 2020, Vice-Chairman of the NPCSC Mr. Wang Chen clearly stated that the CPG decided to formulate the NSL for the HKSAR simply because it is “forced” to do so. Given such speech, a speaker was of the opinion that when formulating the NSL, the NPCSC should adopt the principle of necessity and not to cast the legislative net too wide; otherwise it would be inconsistent with the narrative that “the CPG is only forced to take action”.
On the other, another speaker thought that the NPCSC’s legislation should follow the principle of precision, i.e., precisely defining the meanings and scopes of coverage of “secession”, “subversion of state power”, “organization of terrorist activities” and “activities of foreign and overseas forces to interfere in the affairs of the HKSAR”, thus allowing the general public to have a better understanding of what kinds of acts/activities amount to those crimes, hence preventing them from unconsciously violating the NSL. To make it even easier for the general public to understand, a speaker proposed that the language and wording used in stipulating the definitions of those offences and their punishments should be familiar to the people in the Hong Kong society.
A speaker argued that the NPCSC’s NSL should “target the big fish and release the small fish”, namely, aiming only at the acts and activities that seriously endanger national security. A speaker pointed out that the NPCSC should note the difference between the criminal law in mainland China and that in Hong Kong, and should not transplant the mainland penal codes into Hong Kong.
A speaker maintained that the NPCSC should take “One Country, Two Systems” as the paramount principle, viz, defending the baseline of “One Country” while preserving the integrity of “Two Systems”. A speaker contended that “non-retroactivity” is a universally acknowledged criminal law principle, thus the NPCSC should not depart from it when formulating the NSL for the HKSAR.
Bottom Lines of the NPCSC Legislation
A speaker argued that while the NPCSC may refer to the criminal laws of mainland China, Macau, or other jurisdictions, it may not go beyond the Criminal Law of the People’s Republic of China 1997 (CL 1997). Under the CL 1997, the crimes of counterrevolution which existed in the Criminal Law of the People’s Republic of China 1979 were replaced by the crimes of “subverting the political power of the State power or overthrowing the socialist system”. A speaker stressed that the NPCSC legislation should draw distinctions between private expressions and public expressions; between ordinary discussion, teaching, and news report from politically motivated propaganda and instigation; and between peaceful/lawful expressions and unlawful/violent expressions.
A speaker argued that the NPCSC should take the PRC Constitution, the HKSAR Basic Law, and the NPC Decision as bottom lines of the NSL. On the one hand, both the PRC Constitution and the Basic Law constitute the constitutional basis of the HKSAR, hence any laws formulated by the NPC or the NPCSC should not go beyond this existing constitutional framework. On the other hand, the NPC Decision is both the specific legislative basis to be relied on by the NPCSC to formulate the NSL (without the authorization of the NPC, the NPCSC itself does not have any power to formulate the NSL) and the document which restricts its legislative power in this case. The NPC Decision is without doubt a political resolution. Nonetheless, the legislative act under the NPC Decision must be carried out according to and within the established framework of legal mandate set by PRC Constitution, the Basic Law and the NPC Decision.
A speaker contented that the bottom line of the NPCSC’s NSL should be Article 159 of the Basic Law which provides that: “No amendment to this Law shall contravene the established basic policies of the People’s Republic of China regarding Hong Kong”. Since no amendment to the Basic Law should contravene the established basic policies of the People’s Republic of China regarding Hong Kong, so needless to say the NPC Standing Committee’s NSL also should not violate these basic principles. It is the CPG’s established policies to allow Hong Kong to enjoy “independent judicial power, including that of final adjudication” and to preserve its common law system. Such a bottom line, according to the speaker, could not be violated.
Enforcement Mechanism of the National Security Law
Article 4 of the NPC Decision specifies that “The relevant organs for safeguarding national security of the Central People’s Government will establish institutions in the Hong Kong Special Administrative Region as necessary to perform duties related to safeguarding national security in accordance with the law.” Most speakers agreed that even though the original text read “as necessary” (i.e. may or may not), it is certain that the relevant organs for safeguarding national security of the CPG will establish institutions in the HKSAR. At this time, the most important thing is to define the nature and power of such kind of institutions.
As far as the nature of these national security institutions was concerned, one speaker noted that there would be three possible scenarios. The first scenario is, as with the National Supervision Committee, an agency in the form of CPG’s dispatched institutions whose organization, personnel and operation procedure are decided by the CPG. This agency would act beyond the control of the political and judicial systems of the HKSAR, hence dealing a rather heavy blow to Hong Kong’s existing legal system. The second scenario is to “revive” the pre-1997 Special Branch — a unit under the Hong Kong Police specializing in political offences investigation — which might pose relatively fewer challenges to Hong Kong’s existing legal system. The third scenario, whose challenge to Hong Kong’s existing legal system is relatively moderate among the three options, is for the CPG to establish an institution in Hong Kong pursuant to Article 22 of the Basic Law to direct the Hong Kong Police in enforcing the NSL. The speaker further argued that the first option gives the national security agency too much power and the second scenario gives it too little power. Comparatively speaking, the third scenario should be a more acceptable option for both the CPG and Hong Kong, and thus he hoped that the CPG could take into account the actual situation in Hong Kong and consider adopting this option.
With regard to future enforcement of the NSL, one speaker proposed three methods of enforcement depending on the severity of the crime concerned and with the coordination between the CPG and Hong Kong: for minor crimes, they could be investigated by the Hong Kong Police; for crimes of moderate severity, they could be investigated by the Hong Kong Police under the direction of the CPG; for the most severe crimes, they could be investigated by the CPG.
National Security Law and Hong Kong Courts
A speaker advocated that the territorial principle could be adopted with regard to cases involving the NSL, i.e. all criminal offenses committed in Hong Kong, regardless of whether the defendants are Hong Kong residents, residents of mainland China, or a foreigner, should be prosecuted in Hong Kong and tried by Hong Kong courts.
As for judicial review, a speaker pointed out that while Hong Kong courts do not have the authority to rule on the constitutionality of the NSL because the NSL is legislation formulated by the Central Authorities, they do have the authority to review the legality of the relevant substantive administrative acts made under the NSL.
Most speakers expressed the view that the allegation that “foreign judges cannot accurately understand and apply the NSL” is wrong. They argued that nationality and right of abode cannot be used to assess the judicial capability of individual judges. This is because, Article 92 of the Basic Law provides that: “Judges and other members of the judiciary of the Hong Kong Special Administrative Region shall be chosen on the basis of their judicial and professional qualities and may be recruited from other common law jurisdictions”. As such, the NSL should not exclude foreign judges from adjudicating cases related to this Legislation, otherwise it will contravene the Basic Law.
Regarding the public trial, most speakers agreed that open trial shall be the principle and closed trial shall be the exception, for instance, cases involving state secrets can be conducted in the form of closed-trial.
National Security Law and Rights of the Hong Kong Residents
According to Article 39 of the Basic Law, “[t]he provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region”. In the past, the Hong Kong courts had directly or indirectly invoked these two international covenants to review the constitutionality of legislations enacted by local legislature.
A speaker suggested that to avoid unnecessary disputes, the NPCSC could review the NSL and issue a declaration stating that the NSL is consistent with the two international covenants. A similar declaration had been issued by the NPC on 4 April 1990 to state that the Basic Law is consistent with the PRC Constitution. But another speaker pointed out that since China has not yet ratified the International Covenant on Civil and Political Rights (ICCPR), it would be difficult for it to base on the ICCPR to review the constitutionality of the NSL.
A speaker pointed out that since most rights are not absolute rights and the general public also accept that “rights have limits”, therefore the NSL should strike a balance between competing rights and interests.
National Security and Counterterrorism
Article 6 of the NPC Decision punishes the acts of “organizing terrorist activities”. A speaker pointed out that different jurisdictions have different understandings of the legal interests infringed by terrorism: some jurisdictions consider it as an infringement of the national security of the state, while some other jurisdictions consider it as an attack to public security, and some as a violation of public order.
At the beginning, the most common practice is to distinguish counterterrorism from national security, whereas, after the “911 Incident”, some countries (such as Germany, Italy, Singapore, and Australia) started to treat terrorism as a crime that endangers national security. In mainland China, the narrow definition of national security does not cover counterterrorism. Macau’s approach is to distinguish national security from counterterrorism, leaving cases involving terrorism to be adjudicated by ordinary courts while mandating cases involving crimes endangering national security to be adjudicated by judges of Chinese nationality. However, given the different situations in Hong Kong and Macau, the same approach may not be adopted in Hong Kong.
There are several tricky issues facing the Hong Kong’s counterterrorism legislation: Firstly, how to distinguish counter-terrorism in the context of protection of national security and anti-terrorism in the context of criminal investigation; secondly, how to deal with the “exception clause” in Hong Kong’s counterterrorism law which might become a major obstacle in judicial cooperation; and thirdly, how to deal with issues relating to the special measures employed in the prevention and investigation of terrorist activities, such as undercover, trailing of suspects, surveillance and witness concealment in trial proceedings, etc.
National Security Legislation and International Relations
One speaker noted the United States’ policy towards Hong Kong is mainly determined by three factors: Firstly, Hong Kong’s international economic status; secondly, Hong Kong’s role as the United States bridgehead to China’s market; and thirdly, Hong Kong’s role as the United States’ bridgehead to the “peaceful transformation” of China.
The international environment has however changed in recent years. The policy elites in the United States have realized that their country is no longer the largest beneficiary in Hong Kong’s status as an international financial centre, and “peaceful transformation” of China is no longer possible. Given such a zero-sum political game, the United States might have determined to destroy Hong Kong’s privileged position in the international economic system.
After the NPC Decision was adopted, the United States announced a series of sanctions. But in the foreseeable future, these measures are unlikely to have significant impacts on Hong Kong. For example, the United States cannot unilaterally revoke Hong Kong’s status as a separate customs territory because this status is not determined by the United States. Delinking Hong Kong currency’s peg from the US dollar is difficult to achieve because the United States has been pursuing the policy of free convertibility of US dollars, thus prohibiting free conversion between Hong Kong currency and US dollars would mean that the United States has to abandon such policy. Free flow of capital, too, does not depend on the United States. So, the United States’ sanctions may only be practical in terms of restricting the exports of certain technologies to Hong Kong, thus affecting the tertiary education institutions in Hong Kong to a certain extent. In short, the United States’ sanctions will not have significant impact on Hong Kong in the short run though their long-term effect remains to be seen.
Other Remaining Issues
Since the NSL draft still has not been made public, many speakers agreed that many issues surrounding the NSL remain to be determined by the legislators. For instance, what will be the mechanism to interpret the NSL? Should the NSL be interpreted by the Hong Kong courts or by the CPG? How to ensure that the NSL is in line with the legal system of the HKSAR? Will the NSL hinder academic exchange between Hong Kong and other countries/jurisdictions? How will entities being regarded in mainland China as endangering national security be treated under the NSL? How will verbally propagandizing “Hong Kong Independence” be handled under the NSL? How will the jurisdiction issue be handled in joint offences involving mainland China and Hong Kong? Will there be any rendition/extradition arrangement under the NSL? Will the national security institutions to be established by the CPG in Hong Kong subject to Article 22 of the Basic Law? Will there be a jury trial for cases involving crimes endangering national security? After the enactment of the NSL, will the relevant legislative materials be made available for public access, thus helping people to better understand the NSL?