National security legislation demonstrates central government’s maximum trust in the SAR

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 was prepared by Hong Kong’s Tomorrow Concern Group, an association of Hong Kong-based legal experts.

Q: How does the draft national security law embody the principles of “one country, 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:

• 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.

• 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.

• 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).

• 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.

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.

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. 

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.

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.