National Security Law

It has been two months since the coming into effect of the National Security Legislation (“NSL”) on 30 June 2020. Since then, a series of measures have been announced by some overseas jurisdictions by way of response to the passing of the NSL. They include, for instance, the passage of the “Hong Kong Autonomy Act” by the US Congress, the passing of a new immigration route for Hong Kong BNO passport holders by the UK, and the unilateral suspension of the relevant agreements with Hong Kong on surrender of fugitive offenders by the UK, Canada, Australia, New Zealand, Germany, France and the US. Comments on the NSL have been made in reports of international organisations including, for example, the reports respectively by the European Commission, the UK’s All-Party Parliamentary Group on Hong Kong and the Japan Parliamentary Alliance on China.

The overwhelming reactions from different quarters have their own angles on the NSL. For the Law Society, our focus, as always, is on the legal perspective. 

Prior to the NSL’s promulgation, we had issued two statements dated 11 and 24 June 2020. On 15 July, we organised an online Roundtable Discussion on the NSL with eminent speakers for over 700 participants. 

As the NSL is already in force, any suspected violation of its provisions may lead to arrests. A number of such arrests have in fact been made since July and the NSL is being applied by the Court in real cases. One example is the recent judgment in HKSAR v Tong Ying Kit [2020] HKCFI 2196 (which was on a bail application by a defendant who had been charged with two offences under the NSL, being the first of its kind). In its judgment, the Court commented that Article 42 of the NSL does not introduce any drastic or significant changes to the existing law and practice regarding bail applications. 

While the provisions in the NSL are being enforced, as noted in our Roundtable Discussion in July, there are concerns and queries surrounding the NSL, some of which do not seem to have direct answers. The Administration is urged to be more forthcoming in tackling those concerns, which are quite widely shared in the public, in a timely manner. 

An English version of the NSL was gazetted shortly after the promulgation of the NSL in Chinese text. However, it is specified to be for reference only. The accuracy of the English version on some specific terms is open to argument. The possible issues arising from a lack of an official English translation in Hong Kong, where we have all our Ordinances enacted in both official languages of Chinese and English, need to be addressed. 

Articles 4 and 5 of the NSL stipulate that Hong Kong people’s rights and freedoms under the Basic Law as well as the relevant provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration shall be respected and protected. Further, the important principles of the rule of law including presumption of innocence (a person is presumed innocent until convicted by a judicial body); non bis in idem (no one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in judicial proceedings); right to a fair trial (the right to defend himself or herself and other rights in judicial proceedings that a criminal suspect, defendant and other parties in judicial proceedings are entitled to under the law shall be protected) and non-retrospectivity (the NSL applies only to acts after its commencement), have been expressly provided for in the NSL.

However, the inclusion of these express protections in the NSL does not seem to have achieved the level of comfort that they normally give. An example often given to show the uncertainties created by some provisions in the NSL is Article 55. Under it, the Office for Safeguarding National Security is empowered to exercise jurisdiction over three specified types of cases. Articles 56 to 58 elaborate on the procedure that will be followed when Article 55 is invoked. However, the possibility of being subject to a jurisdiction with a different legal system has given rise to anxieties as to how the protections embedded in the NSL will be effected. 

The above are just some of the examples of common concerns in connection with the NSL. The NSL is part of our laws now. It falls on the Administration to explain clearly the parameters of the law and to advise the public of its plans to address those concerns that have caused the anxiety. It may, for example in relation to Article 55, explain and elaborate on the elements that may constitute a case falling within the specified situations under the Article and clarify the detailed procedures that will take place if there is an alleged breach. 

The Law Society will liaise with the Administration on those concerns and share further updates where appropriate.

Melissa K Pang, President

Jurisdictions

President

The Law Society of Hong Kong