The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“National Security Law”) is an important legislation for Hong Kong. No doubt, it is also one that has stimulated mixed reactions and heated discussions both locally and internationally.
The National Security Law was passed by the Standing Committee (“NPCSC”) of the National People’s Congress (“NPC”) and added to the list of national laws in Annex III to the Basic Law pursuant to Article 18 of the Basic Law on 30 June 2020. It took effect in Hong Kong on the same day upon gazettal of the government promulgation.
Prior to the passing of the National Security Law, the Law Society has issued two public statements following respectively the issue on 28 May of the NPC’s Decision on “Establishing and Improving a Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security”, and on 21 June of the Outline and Explanation on the content of the draft law on safeguarding national security. We published our observations on the Decision and our comments on the Outline and Explanation, which have also been sent to the relevant authorities and officials including the Secretary for Justice, the Secretary for Security, the Liaison Office of the Central People's Government in the HKSAR (“CPGLO”) (for onward transmission to NPCSC), the Hong Kong and Macao Affairs Office and the Ministry of Foreign Affairs. We have asked for a meeting respectively with the Secretary for Justice and the CPGLO, but have not yet had the opportunity.
The Law Society acknowledges that, as the highest state organ and legislative body of the PRC, the NPC under the Constitution of the PRC has the power to decide on and to institute a law for maintaining national security. Nevertheless, the Law Society has always maintained the position that in invoking its powers under the Constitution, the NPC should exercise restraint to uphold confidence in the One Country Two Systems policy and the Rule of Law in Hong Kong. Hence, in the two Law Society statements, we highlighted major areas that might have or might be perceived to have an impact on these core values and hence required careful consideration. They included, among others, transparency and consultation in the legislative process, due regard to common law principles and human rights protection, narrow and clear definition of offences, open jury trials, reasonable, necessary and proportionate sentencing, no retrospective offences and proper protection of legal professional privilege.
The National Security Law came into force from 11 pm on 30 June. Community wide discussions are being held on the new law in order to assess the extent of its impact on the city as a whole. While the relevant specialist committees of the Law Society are reviewing the detailed provisions, to allow more members to participate in the discussion and to share their views and comments on the National Security Law, the Law Society organised an online Roundtable Discussion Forum on 15 July. Over 700 participants attended. Eminent guest speakers were invited to share their views on the National Security Law from different perspectives. The Forum afforded an opportunity for an open and focused discussion on a wide range of issues surrounding the constitutional basis, the scope of the new offences, the enforcement of the new law and the interaction between the Hong Kong and Mainland legal systems in relation to the National Security Law. Views were shared at the Forum on the relationships among the PRC Constitution, the Basic Law, the Sino-British Joint Declaration and the National Security Law. Further, comments on the grey areas requiring clarifications in the new Law were elaborated at the Forum. They included broadly, for example, the apparent inconsistencies between some terms used in the official Chinese version and the English translation and the extent of relevance of the Mainland criminal law in interpreting some terms used in the new Law which were borrowed from the Mainland Criminal Code. More specific concerns arising from a lack of clarity included, for instance, the exact meaning of “involvement” in Article 55(1), the procedure to be adopted for trials of offences by a three-judge panel under Article 46, and the meaning of “exempted” in the sentencing of offenders under Article 33. The Law Society was grateful to the speakers and moderators of the Forum for their time in participating in the Forum. For those who have missed the presentations, please visit the Law Society website where you can watch a video recording of the Forum.
The Implementation Rules for Article 43 of the National Security Law were gazetted on 6 July and took effect from 7 July. The Department of Justice has also issued the Operating Principles and Guidelines for Application for Authorisaton to Conduct Interception and Covert Surveillance pursuant to the Implementation Rules. These new provisions have created new issues to the on-going discussions on the National Security Law. With the success of the July Forum, the Law Society may consider holding another one to facilitate more in-depth discussions on specific aspects of this new Law. If you have any comments on the National Security Law or the Implementation Rules, you are most welcome to send them to us at firstname.lastname@example.org.
Melissa K Pang, President