National Security Law

The preamble of the Basic Law (“BL”) clearly states that the purpose of establishing the Hong Kong SAR is to “uphold national unity and territorial integrity and maintain the prosperity and stability of Hong Kong”. Articles 1 and 12 further state that Hong Kong “is an inalienable part” of the People’s Republic of China and “enjoy a high degree of autonomy and come directly under the Central People’s Government”. Article 23 provides that Hong Kong shall on its own enact laws to prohibit seven types of offences which endanger national security. 

From a constitutional law angle, Article 23 does not mean that the Central People’s Government has abdicated its right to legislate for safeguarding national security in Hong Kong if and when needed, especially when Hong Kong has failed to fulfill its constitutional obligation under Article 23 since 1997. With the eruption of social unrest in 2019, on 30 June 2020, the Standing Committee of the National People’s Congress passed the “Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” (“NSL”). The NSL was forthwith added to Annex III of the BL under Article 18 and became effective.

In public international law domain, national sovereignty is invariably related to safeguarding national security and sovereign equality is a basic norm of international relations. The principle of sovereign equality is also entrenched under the Charter of the United Nations. Most countries have enacted some form of national security-related legislations, including the US (Patriot Act, Logan Act, Homeland Security Act), the UK (Terrorism Act), Australia (National Security Law Act), Canada (National Security Act), and New Zealand (Crime Act), Singapore (Internal Security Act). The offences under NSL are not dissimilar to those in the national security legislations of other countries.  

Sweeping comments on the NSL have continued to appear in international literature since its promulgation in 2020. A few areas are often quoted to support allegations that Hong Kong no longer enjoys judicial independence.    Readers of commentaries on NSL are encouraged to take some time to understand the provisions and the relevant circumstances before drawing their own conclusions.

One of these areas is Article 44 of NSL. A careful reading of the Article reveals the following salient features in the designation of judges to handle cases concerning offences endangering national security:

(a) All designated judges will come from the existing ranks of the Judiciary who have already been appointed as judges under the well-established appointment system in accordance with the requirements of the Basic Law (“BL”), i.e. they have been chosen on the basis of their judicial and professional qualities (Article 92, BL) by the Judicial Officers Recommendation Commission (“JORC”), an independent commission composed of local judges, persons from the legal and other sectors and chaired by the Chief Justice (Article 88, BL).

(b) In addition to having already passed the vetting by JORC, the Chief Executive may further consult the Chief Justice before making any designation.

(c) All judges in Hong Kong (not just NSL Judges) are appointed by the Chief Executive. According to Article 48(6) of the BL, the Chief Executive shall appoint or remove judges of the courts at all levels.

(d) The designation is for a one-year term, which enables regular review.

(e) To ensure that judges not only are, but also are seen to be, impartial and neutral. the Article has built in prohibition against designation, or power of removal from the designation list, of those judges who have made any statement or behaved in any manner endangering national security.

It is also worth noting that Article 44 relates only to the formation of a pool of judges to handle NSL cases, similar to the formation of a specialist panel of judges to handle specific types of cases (for example, construction cases). As to the listing and handling of cases and the assignment of which judge or judges to handle cases or appeals, they will be determined by the court leader of the relevant level of court in accordance with the established mechanism.

Any allegation implying that the judges designated to hear NSL cases will allow themselves to be influenced by any political consideration when they decide those cases is an affront to judicial integrity. The constitutional role of judges is to apply only the law. Article 84 of BL states that judges shall adjudicate cases in accordance with the law. The Judicial Oath taken by all judges requires adherence to the law and the safeguarding of the law without fear or favour.

Article 55 of NSL is another area often quoted in NSL discussions. HKSAR generally has jurisdiction over cases under NSL except those provided in Article 55.

The Article provides that the Office for Safeguarding National Security of the Central People’s Government in HKSAR shall exercise jurisdiction over a case concerning offences endangering national security under NSL if specified conditions are satisfied. In considering this provision, one should be careful not to overlook the following points:

(a) Only those cases that fall under NSL (i.e. not any national security cases) are covered by Article 55.

(b) One of the conditions set out in Article 55(1) to (3) has to be satisfied to trigger the application of the Article.

(c) Whether the conditions are sufficiently clear are subject to different interpretations. Some take the view that the conditions are clear because, for instance, the complexity referred to in Article 55(1) is defined by the difficulty in exercising jurisdiction over the case by the HKSAR due to the involvement of a foreign country; or the seriousness of a situation referred to in Article 55(2) is defined by the inability of the HKSAR Government to effectively enforce NSL. Some also take the view that the major and imminent threat to national security contained in Article 55(3) is similar to the scope of the existing provisions in Articles 18 and 19 of BL which refer to the Central Government having the power to apply national laws by reason of “turmoil ...which endangers national unity or security and is beyond the control of the government….., decides that the Region is in a state of emergency…” or the Hong Kong courts having no jurisdiction over “acts of state such as defence and foreign affairs.”.

Article 55 has not been invoked before. Commentaries that it will not be properly applied, or it will be applied in such a way as to be in breach of the rule of law, are unfairly made on mere assumptions. Readers must be careful not to allow themselves to be misled.

The above illustrations through the specific examples of Articles 44 and 55 are aimed at encouraging rational and balanced analyses when faced with public information containing unverified criticisms on the application of NSL. Please take some time to review the primary sources of information, including the exact wording of the NSL provisions, the relevant BL provisions, and the reasoning in the publicly accessible court judgments of NSL cases.