Editor’s note: The following is a collection of questions and answers regarding the draft law on national security for the Hong Kong Special Administrative Region. It’s prepared by Hong Kong’s Tomorrow Concern Group, an association of Hong Kong-based legal experts.
1. Q: What is national security? What has our country achieved with regard to national security legislation?
A: National security is a matter of paramount importance to a country and a prerequisite for its existence and development. The scope of national security evolves with changes of circumstances. In addition to traditional security areas such as political security (including regime security), homeland security and military security, it also includes non-traditional security areas such as financial security, bio-security, cybersecurity and nuclear security.
Over the years, China has enacted a series of laws to safeguard national security. More laws are in the pipeline, including bio-security legislation, land boundary legislation, data security legislation, atomic energy legislation, ocean “basic law”, space legislation, food safety protection legislation, etc.
The ongoing national security legislation for the Hong Kong SAR has taken into account the Nation’s overall security situation as well as Hong Kong’s current situation.
2. Q: What are the common practices in countries around the world when it comes to safeguarding national security?
A: In any sovereign state, the central government bears the fundamental responsibility for national security.
It is an international practice to safeguard national security through laws that are collectively enacted and enforced at the state level. Countries, including the United States, the UK, France, Germany, Russia, and India, all have established rigorous legal systems to safeguard national security. The United States, for example, kept enacting legislation to safeguard national security. Since the Sept 11 attacks, more than 10 laws have been enacted or amended. The “Cloud Act” even extends US assertions of its national security jurisdiction to other countries.
Indeed, international covenants such as “the International Covenant on Civil and Political Rights” and the constitutions of more than 100 countries in the world expressly stipulate that the exercising of fundamental rights and freedoms by individuals shall not endanger the national security of their respective countries.
Countries across the world have strong national security enforcement agencies and will never hesitate to adopt effective measures to crack down on crimes that endanger national security. Well-known examples of these national security agencies include the FBI, CIA, MI5 and MI6. Using Spain as an example, Catalan separatist leaders were prosecuted for inciting subversion and received heavy sentences meted out by the country’s Supreme Court.
3. Q: How does the draft national security law embody the principles of “one county, two systems” and “Hong Kong people governing Hong Kong with a high degree of autonomy”?
A: National security is a national matter. In any country, whether it adopts a unitary or a federal system, national security legislation is formulated by the state, and relevant law enforcement agencies are set up and operated collectively by the central government. No country in the world will leave national security matters entirely to the local governments.
While drafting the national security law (the legislation) for Hong Kong, the Central Government has given full consideration to the principles of “one country, two systems”, and “Hong Kong people governing Hong Kong with a high degree of autonomy”. It has taken into account the different legal and judicial systems of both the Chinese mainland and Hong Kong. The legislation therefore has the following four characteristics:
1. The legislation demonstrates the Central Government’s maximum trust in the HKSAR. It has been made clear that the HKSAR bears the main responsibility for safeguarding national security in Hong Kong. Most of the work related to national security in Hong Kong, including law enforcement, prosecution and judicial related work, and the vast majority of the relevant cases will be handled by the SAR.
2. The legislation guarantees the maximum protection of human rights. The draft law expressly stipulates that the various rights and freedoms enshrined in the Basic Law and related international covenants (i.e. the International Covenant on Civil and Political Rights and the International Covenants on Economic, Social and Cultural Rights) are guaranteed. Besides, the universally accepted principles of the rule of law are also reflected in the legislation, including no penalty unless prescribed by law, no crime unless clearly spelled out by law, the presumption of innocence, protection against double jeopardy (Autrefois acquit), and protection of the parties’ rights, including the right to a fair trial.
3. The legislation has maximum regard to the characteristics of the common law system. While conforming to the national laws, the legislation takes fully into account the particularity of Hong Kong’s legal and judicial systems. It has also considered the acceptability of the Hong Kong society of the legal concepts, the use of the language and the manner of enacting law (such as in relation to the verification of criminal acts and criteria for sentencing).
4. The legislation guarantees the maximum effective law enforcement. The legislation stressed the constitutional responsibility of the HKSAR and its major responsibility of safeguarding national security. It has also made clear that the SAR’s administrative, legislative and judicial organs will shoulder the bulk of the responsibilities of preventing, curbing and punishing acts and activities that pose grave threats to national security in the SAR.
Meanwhile, the Central Government retains the power to exercise jurisdiction over an extremely small number of criminal cases that seriously jeopardize national security under “special circumstances”, a practice that strengthens the system for the HKSAR to safeguard national security.
4. Q: Why does the Central Government retain the power to exercise jurisdiction under “specific circumstances” when the HKSAR bears the main responsibility for safeguarding national security?
A: National security falls within the purview of the central government. The central governments of all sovereign countries shoulder the fundamental responsibilities for national security and take control over national security affairs.
For instance, in matters of safeguarding national security, the United States has adopted a centralized and uniform law enforcement and judicial system established by the federal government. Related national security laws are federal laws enacted by the US Congress, and enforced by federal agencies, including the FBI and CIA. Federal prosecutors are responsible for prosecutions, and national security cases are tried in federal courts. The whole process is not in the hands of the legislatures, the law enforcement agencies and the judiciaries of the individual states. State governments and local governments are required only to assist the federal government in the process.
In the implementation of the principles of “one country, two systems”, “Hong Kong people governing Hong Kong” with a high degree of autonomy, the HKSAR bears the main responsibility for safeguarding national security, but that does not mean that the Central Government gives up the responsibility and authority in safeguarding national security. In fact, there are criminal cases endangering national security falling under certain “specific circumstances” that the law enforcement and judicial organs in the HKSAR might not be able to cope with. For example, it is difficult to rely solely on the HKSAR to investigate and handle complicated cases involving foreign institutions and organizations as well as situations that may lead to diplomatic negotiations. When such a situation occurs, the Central Government must exercise jurisdiction over the cases. Such an arrangement will be beneficial to supporting and strengthening law enforcement and judicial functions of the HKSAR in safeguarding national security.
5. Q: Will the National People’s Congress Standing Committee continue to have regard to the opinions of the HKSAR Government and Hong Kong residents during the legislative process? If so, what are the arrangements?
A: Since the decision on Establishing and Improving the Legal System and Enforcement Mechanisms for the HKSAR to Safeguard National Security was adopted on May 28 at the closing meeting of the Third Annual Session of the 13th National People’s Congress, the Central Government has received opinions of the HKSAR Government and people of all walks of life of the HKSAR in multiple ways.
Vice-Premier Han Zheng, who is also a member of the Standing Committee of the Political Bureau of the Communist Party of China Central Committee, met with HKSAR Chief Executive Carrie Lam Cheng Yuet-ngor in Beijing on June 3 to hear from her the HKSAR Government’s opinions on the national security legislation for the HKSAR. The Hong Kong and Macao Affairs Office of the State Council, the Liaison Office of the Central People’s Government in the HKSAR and the Legislative Affairs Commission of the NPCSC, among other institutions, have also received, through multiple channels, the opinions and suggestions of the HKSAR deputies to the NPC, members of the National Committee of the Chinese People’s Political Consultative Conference from Hong Kong, provincial CPPCC members from Hong Kong, and various sectors as well as groups in Hong Kong.
A petition in support of the national security legislation organized by various sectors of Hong Kong collected 2.92 million signatures in an eight-day campaign, and it fully reflected the mainstream public opinions in Hong Kong.
The NPCSC will continue to receive opinions on the legislation from people of all sectors, including those of the Hong Kong compatriots.
The relevant departments of the NPCSC, together with the Hong Kong and Macao Affairs Office of the State Council and the Liaison Office of the Central People’s Government in the HKSAR, will continue to hold symposiums to receive opinions and suggestions of people of all circles in Hong Kong, including relevant officials of the HKSAR Government, legal experts, and members of the Drafting Committee of the Basic Law of the HKSAR, so that their opinions and concerns will be reflected as much as possible in the final version of the legislation.
6. Q: How will the draft law on safeguarding national security for the HKSAR protect the rights and freedoms prescribed in the relevant international covenants on human rights?
A: The draft law on safeguarding national security clearly mandates that human rights should be protected and respected.
The draft law recognizes and protects all of the legitimate rights and freedoms of Hong Kong residents, including freedom of speech, press, publication, association, assembly, procession and demonstration, as stipulated in the Basic Law of the HKSAR and the relevant international covenants, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and thus it fully complies with the spirit of international conventions.
Moreover, the draft law adheres to the internationally recognized principles of the rule of law, such as that the penalty must be prescribed by law, a crime must be clearly spelled out by law, and there is a presumption of innocence, there is protection against double jeopardy (Autrefois acquit), and there is protection of the parties’ rights, including the right to a fair trial of the person concerned, among others. The aforesaid principles will help to protect all the legitimate rights and freedoms of Hong Kong residents.
7. Q: Why does the Central Government repeatedly emphasize that the national security legislation targets only an extremely small number of people?
A: Objectively speaking, only an extremely small number of people are likely to offend the four categories of crimes that threaten national security as stipulated in the draft law.
The draft law proscribes only four types of offenses: secession, subversion of state power, terrorist activities, and collusion with foreign or external forces to endanger national security. Obviously, they have nothing to do with the overwhelming majority of Hong Kong residents. As for other conventional crimes such as economic offenses, they are not covered by the national security law and will instead be dealt with in accordance with the existing laws of the HKSAR.
It is necessary to repeatedly emphasize that only an extremely small number of people are targeted because there are people who always tend to stigmatize and demonize legal issues involving the Central Government. During the “Extradition Bill Incident” in 2019, many people were misled to take to the streets by the rumor that people will be handed over to the Chinese Mainland to stand trial and be put behind bars if the bill were to pass.
There was also a recent rumor claiming that the Central Government’s national security office in the HKSAR could make random arrests and send people to the Mainland to stand trial. It is obvious that these are lies intended to create fear and panic.
8. Q: What are the considerations for the Central Government to establish a national security office in Hong Kong?
A: It is a universally accepted principle for a country’s central government to set up a dedicated institution to take care of national security affairs as a whole. For example, it is up to Spain’s central government to deal with the Catalonia independence movement on a national level, including the conduct of the trial of those involved in the movement by the country’s Supreme Court. If the issue were to be dealt with at the discretion of Catalonia, it would be hard to imagine that they would view the matter from the perspective of the whole nation and safeguard Spain’s national unity voluntarily.
The Central Government’s move to set up a national security office in the HKSAR is an indispensable and key step in the establishment of the national security system in Hong Kong. Special circumstances in which the HKSAR may lose control or would be incapable of handling should always be anticipated. Therefore, a sound legal system and enforcement mechanisms must be in place to ensure that should such special circumstances occur, relevant crimes would be effectively dealt with and not be left unchecked.
Meanwhile, the draft law sets a clear restriction as to what constitute “special circumstances” for the Central Government to exercise jurisdiction. This demonstrates that the draft law, in a prudent manner, has laid down objective criteria for the types of cases within the jurisdiction of the Central Government and that it will not affect Hong Kong’s judicial independence, including its final adjudication power conferred by the Basic Law of the HKSAR.
9. Q: What is the relationship between the Central Government’s national security office in the HKSAR and the HKSAR’s institutions for safeguarding national security?
A: The national security agencies set up by the Central People’s Government and the HKSAR Government jointly form the enforcement mechanisms for safeguarding national security in the HKSAR. According to the draft law, the HKSAR takes major responsibilities of safeguarding national security, which means the HKSAR is responsible for the majority of work in this regard (including law enforcement, prosecution and the discharge of judicial functions), and exercises jurisdiction over most criminal cases stipulated in this law.
The main duty of the national security office set up by the Central People’s Government in the HKSAR is to analyze and appraise the national security situation in the HKSAR; to offer advice and suggestions for major strategies and important policies of safeguarding national security; to supervise, guide, coordinate with and support the HKSAR in performing its duties on safeguarding national security; and to collect and analyze intelligence information concerning national security. It retains the right to exercise jurisdiction in accordance with the law over an extremely small number of criminal cases that pose grave threats to national security under specific circumstances. This is an important manifestation of the Central Government’s overall jurisdiction over the HKSAR, and is conducive to supporting and strengthening the HKSAR in law enforcement and the administration of justice concerning safeguarding national security.
10. Q: What specific authority does the Central Government’s national security office in the HKSAR hold in law enforcement? Should its officers abide by local laws of the HKSAR?
A: The draft law clearly stipulates the extent of the Central Government’s national security office. The organization’s work and law enforcement activities in safeguarding national security shall be conducted strictly in accordance with the law, in line with its power as stipulated in the law, and shall follow statutory procedures.
The draft law clearly stipulates that the national security office in the HKSAR shall perform its duties strictly in accordance with the law, accept supervision in accordance with the law, and shall not infringe upon the lawful rights and interests of any individual or organization. Personnel of the national security office in the HKSAR shall abide by the laws of the HKSAR.
11. Q: The draft law stipulates that the Chief Executive shall appoint judges to handle cases that jeopardize national security. Does this constitute an interference with the HKSAR’s judicial independence?
A: According to the HKSAR Basic Law, judges of HKSAR courts are appointed by the Chief Executive. The Chief Executive is accountable to the Central People’s Government, and it falls within the purview of the Chief Executive to appoint judges suitable for hearing criminal cases that jeopardize national security.
Such stipulation does not constitute interference with judicial independence. Judicial independence means that the judges are free from interference when hearing specific cases, and this stipulation only makes clear that the Chief Executive shall designate, in different levels of courts, a team of judges who are suitable to hear criminal cases that jeopardize national security rather than choosing a judge to preside over a specific case. The stipulation does not restrict the nationalities of the judges, which fully shows respect for the judicial system of the HKSAR. (There is no country in the world that adopts the practice of allowing foreign nationals to be judges to preside over criminal cases concerning national security.)
The draft law clearly stipulates that criminal cases concerning national security under the HKSAR’s jurisdiction shall be processed in accordance with the current legal procedures of the HKSAR. When dealing with specific cases, the Chief Justice will choose judges from the designated judges mentioned above. Therefore, there is no interference with judicial independence.
12. Q: Will the investigation, prosecution and trial of cases endangering national security be carried out by the Central Government’s national security office in the HKSAR, or by relevant departments of the HKSAR?
A: The vast majority of the cases will be handled by the HKSAR. The HKSAR will establish a national security commission and dedicated units in the Hong Kong Police Force, and the Department of Justice will be set up to implement the law. The Chief Executive of the HKSAR will designate judges of various levels of courts in the HKSAR to hear and adjudicate the cases.
The Central Government’s national security office in the HKSAR is obliged to supervise, guide, coordinate with and support the HKSAR in performing its duties on safeguarding national security. Its retains the right to exercise jurisdiction over an extremely small number of criminal cases that pose grave threats to national security under “specific circumstances”.
13. Q: Will the law on safeguarding national security in the HKSAR be applied retroactively? Will Hong Kong residents who took part in protests since last year over the now-withdrawn extradition bill be held accountable for those actions under the law?
A: The explanatory statement of the draft law made no mention of the issue of retroactivity.
In fact, the principles adopted by the Chinese Mainland and Hong Kong on criminal laws are basically the same. The principles of non-retroactivity, penalties prescribed by law and proportional to the crime in substantive law, procedural justice, presumption of innocence, and the right to defense accorded to criminal suspects and defendants will be encapsulated in the law.
The law does not retroactively penalize the ordinary Hong Kong residents who have a history of participating in protests. But an extremely small number of people who engaged in activities jeopardizing national security can be held accountable under existing laws in the HKSAR. The Crimes Ordinance, Official Secrets Ordinance, Societies Ordinance and Public Order Ordinance in Hong Kong all have provisions punishing acts and activities endangering national security.
14. Q: Will the national security law be removed from Annex III of the Basic Law of the HKSAR after the regional level law to safeguard national security as required by Article 23 of the Basic Law is enacted?
A: Laws enacted by the National People’s Congress Standing Committee, and laws enacted by the HKSAR under Article 23 of the Basic Law are at a different level and cannot replace each other. The national security law legislated by the NPCSC will not be annulled or abolished after the HKSAR enacts a law for the same purpose at the regional level.
After the HKSAR enacts a national security law under Article 23 of the Basic Law, it will, together with the law legislated by the NPCSC, form the legal system safeguarding national security in Hong Kong.
15. Q: There are many foreign organizations in Hong Kong. In particular, a large number of international non-governmental organizations have very close contacts with the Hong Kong society. How can ordinary residents avoid committing criminal acts of collusion with foreign or external forces?
A: Hong Kong is an international city and has close contact and communication with other countries, regions and relevant international organizations. These normal interactions are protected by the Basic Law and local laws of the HKSAR. For instance, introducing Hong Kong abroad, expressing views on Hong Kong, exchanging information etc. are normal activities and not restricted by this legislation.
This legislation targets the use of Hong Kong by foreign and external forces to carry out activities of secession, subversion, infiltration and sabotage. For example, activities such as begging for foreign sanctions that severely damage the interests of Hong Kong and the vast majority of Hong Kong residents; this is distinctly different from normal interactions.
The draft law clearly defines the specific composition of the four categories of crimes, so there is no danger of unknowingly committing such illicit acts. Hong Kong residents need not worry that their everyday activities will violate the law.
16. Q: Will the advocacy of “Hong Kong independence” be illegal once the national security law takes effect in Hong Kong?
A: Like the advocacy of Nazism and the incitement of ethnic hatred, the advocacy of “Hong Kong independence” is not part of the spectrum of the freedom of speech, and needs to be regulated by law.
It is an international consensus that the freedom of speech is not absolute. In 2019, the separatist leaders of Spain’s Catalonia independence movement were prosecuted for inciting subversion, and very harsh terms of imprisonment were imposed on them. The European Union and its member states all supported Spain’s action against separatism.
Now more and more Hong Kong people have realized, through painful experience, that “Hong Kong independence” is “political virus” as well as a hotbed for violence and terrorist activities. All of society would pay a bitter price if “Hong Kong independence” were allowed to grow and spread. That is why it must be severely punished with zero tolerance.
17. Q: Will members of the Legislative Council or election candidates be disqualified if they openly oppose the national security legislation for Hong Kong?
A: According to the explanatory statement of the draft law, safeguarding national sovereignty, unity and territorial integrity is an obligation shared by all Chinese people, including Hong Kong compatriots. Any HKSAR resident standing for election or taking up any position of public office shall sign documents in accordance with the law to confirm or pledge to uphold the Basic Law of the HKSAR and pledge allegiance to the HKSAR of the People’s Republic of China. This is also in line with the NPCSC’s interpretation of Article 104 of the Basic Law of the HKSAR.
There are existing laws in Hong Kong dealing with situations in which the words and deeds of Legislative Council members or election candidates clearly indicate that they do not accept the principle of “one country, two systems” and the Basic Law of the HKSAR, and there have been precedents arising out of its implementation.
18. Q: Will the national security legislation for the HKSAR infringe on Hong Kong residents’ basic rights and freedom of speech, press, publication, association, assembly, procession and demonstration? Can people still criticize the government and officials?
A: The national security legislation will not undermine the basic rights and freedoms of Hong Kong residents.
The draft law expressly stipulates that “the enforcement of national security should follow and respect important principles of the rule of law such as protecting human rights.” It will not undermine the freedom of speech and speech alone will not result in criminal sanctions.
Specifically, the basic rights enjoyed by Hong Kong residents in accordance with the Basic Law of the HKSAR and relevant international conventions, including freedom of speech, press, publication association, assembly, procession and demonstration, are all recognized by the draft law. A fortiori, general remarks relating to supervising the government and criticizing government officials are not within the scope of the national security law.
On the same note, neither will the enforcement of national security violate human rights. The draft law clearly stipulates that all law enforcement actions will be conducted strictly in accordance with the provision of the law, the statutory power and legal procedures, and “shall not infringe upon the lawful rights and interests of any individual or organization”.
After the national security legislation is enacted, a very small number of criminal acts that endanger national security will be effectively punished, rule of law in Hong Kong will be improved, the Hong Kong society will be more stable, and the safety of Hong Kong resident’s lives and property as well as various rights and freedoms will be better protected.
19. Q: Will the national security legislation for the HKSAR erode foreign investors’ confidence in the city and undermine Hong Kong’s status as an international financial center?
A: Social instability and an inability to maintain the rule of law are the factors most likely to affect investors’ confidence. Countries such as the United States, Britain, France and Germany all have enacted their own national security laws. Complaints that those laws would affect the economic development and investors’ confidence in those countries are unheard of. While considering long-term investment plans, investors always evaluate the investment environment for the next five to 10 years. This includes political and economic stability — and whether or not business projects and plans will be able to proceed smoothly in the long term.
The prolonged unrest in the wake of the extradition bill has severely damaged Hong Kong’s business environment and international image. It has also dented investors’ confidence, causing international rating agencies to repeatedly downgrade Hong Kong’s credit ratings.
The national security legislation for the HKSAR aims to reverse this situation. It will restore stability, reinstate the rule of law and ensure a sound business environment in Hong Kong. The proposed law will also consolidate and upgrade Hong Kong’s status as a financial, trade and shipping center. It will therefore help to boost investor confidence rather than undermine it.
In the long term, when Hong Kong puts in place systemic safeguards for national security, it gets more leeway in the practice of “one country, two systems”. After adopting national security legislation, Hong Kong will also have stronger support from the Central Government. This includes greater efforts to consolidate Hong Kong’s status as an international financial center. HKSAR Chief Executive Carrie Lam Cheng Yuet-ngor has forwarded proposals to the Central Government in this regard in May this year and has received positive feedbacks. Not long ago, the Ministry of Commerce, the People’s Bank of China, the China Banking and Insurance Regulatory Commission and the China Securities Regulatory Commission, among other institutions, all voiced strong support to buttress Hong Kong’s status as an international financial center.
20.Q: While the draft law is aimed at plugging legal loopholes on national security, what benefits will it bring to the people of Hong Kong and the SAR?
A: The vast majority of Hong Kong residents hope to see social unrest ended and the rule of law restored soon.
Wang Chen, Vice-Chairman of the NPCSC, previously in his explanation of the draft decision on the national security legislation for Hong Kong, stressed that the legislation aims to ensure better protection of life and property for Hong Kong residents, and better protection of their legitimate rights and freedoms.
Every individual in Hong Kong will actually enjoy more freedoms, such as the freedom of living in peace without being intimated by rioters, the freedom of voicing different political views without being attacked, and the freedom of holding different beliefs without having their shop and restaurant premises vandalized.
For Hong Kong as a whole, people will have more hope. They will have hope for the future as young people will avoid being brainwashed by black-clad rioter; they will have hope for an end to social unrest; hope for a rebound in market confidence and for an atmosphere that enables all businesses to recover. People will also have hope that they can now get a chance to resolve deep-rooted problems. This is because Hong Kong residents long for the return of stability and opportunities to push the city forward. They will have hope that Hong Kong can bring all the advantages of “one country, two systems” into full play when life in the city returns to normal.
The national security legislation marks a turning point for Hong Kong to get rid of its predicament and to end chaotic situation with stronger governance. The clearer the bottom line for national security is and the stronger the protection it provides, then the more stable and prosperous Hong Kong will be. Like antivirus software, the legislation will make sure that the practice of “one country, two systems” in Hong Kong will be more secure, more smooth and more enduring.
HONG KONG NEWS