Historically, national security has always been some kind of an enigma for the average person: Why is it important? Who is to decide what is, or what is not, a matter of national security? Why should my rights be restricted because of it? If one were to look at some ancient laws still in force today, one would be even more baffled; for example, the Treason Act of the United Kingdom talks about “giving comfort” to enemies, “imagine … to deprive … the Queen, from the style, honour, or royal name”. Similar laws can also be found in our law books in Hong Kong in the Crimes Ordinance, enacted during British rule.
In general, national security laws put the interest of the nation above individual rights. This is perhaps understandable given the fact that without the safety of the nation, there cannot be safety of the individuals; but in peacetime, it is not immediately evident to the common people why national security laws have to be so sweeping and all-embracing. Most important of all, why should the line always be drawn by the government and not by popular vote?
If one is to look around, one will find that the concept of national security has undergone tremendous changes in recent years. It is now even more sweeping and all-embracing than ancient laws. We are no longer just talking about enemies, or the monarch’s honor, but trade barriers, economic sanctions, high-technology embargoes, even academic or cultural exchanges. Especially in the West, national security concerns are everywhere and in every aspect of daily life. And yet, the common people seem to have very little say in all this.
The UK recently passed a spate of national security laws in just three years, and the power given to the government is unprecedentedly alarming. Under the National Security Act 2023, on the secretary of state’s “reasonable” belief, someone who is, or has been, involved in “foreign power threat activity” can be detained up to five years without notice or trial. Under the National Security and Investment Act 2021, approval of any acquisition of any UK entity or asset is required from the secretary of state if he or she “reasonably suspects” such acquisition has given rise to or may give rise to “a risk of national security”. Under the Telecommunications (Security) Act 2021, the secretary of state can give “designated vendor direction” to a public communications provider in relation to any matter that he or she is of the view may be contrary to the “interest of national security”. And yet, in none of these sweeping provisions is the UK government prepared to give a definition as to what constitutes “national interest” or “national security”.
In Singapore, under the Internal Security Act, the Singaporean president — if satisfied any person may act in any manner “prejudicial to the security of Singapore”, or the “maintenance of public order or essential services” — can, through an order made by the minister in charge of internal security, detain that person for up to two years, and such an order is not subject to judicial review save as to procedural requirements.
In the 2010 case of Holder vs Humanitarian Law Project, the United States Supreme Court ruled that “given the sensitive national security and foreign relations interests at stake, … respect for the Government’s factual conclusions is appropriate in light of the courts’ lack of expertise with respect to national security and foreign affairs, and the reality that efforts to confront terrorist threats occur in an area where information can be difficult to obtain, the impact of certain conduct can be difficult to assess, and conclusions must often be based on informed judgment rather than concrete evidence”. In other words, it is for the administration to decide what is, or is not, a matter of national security.
Whether you agree with this reasoning or not, such is the reality in matters of national security and is or is becoming the norm in the modern world. One may argue that such sweeping powers are tolerable in a Western-style democracy; but is one really saying that in a country with a non-Western system, the government must be powerless to protect its own nation? Where is the logic in that?
You may ask, where does it then leave us with the proposed enactment of Article 23 legislation in Hong Kong? At the end of the day, the true answer may lie with whether there are checks and balances in relation to all government actions. Such checks and balances may lie with a fully elected assembly, or in a fiercely independent Judiciary. We may not be blessed with the former but we are with the latter. Not only that, but we are constitutionally safeguarded by the International Covenant on Civil and Political Rights as well as rule of law principles. These safeguards are not only enshrined in our Basic Law but also formally incorporated into the National Security Law for Hong Kong passed by the Standing Committee of the National People’s Congress, which has an overriding effect on all local laws. These safeguards provide a reasonable assurance that, unlike in the UK or Singapore, practically all administrative decisions affecting individual rights on national security issues are reviewable in our courts.
Let’s not kid ourselves: Hong Kong may still come under severe attack by foreign countries that see China as the enemy, as is demonstrated by the UK government statement issued a few days ago that provoked a stern rebuke from the Chinese government. Be that as it may, these are not matters within our control. What is within our control is the free expression of views in response to the consultation paper issued by the Hong Kong Special Administrative Region government recently together with a host of comparable legislation by other countries on the issue of national security. After all, what is the worth of freedom of expression if one does not make full use of it in as important an issue as in the enactment of a national security law?
The author is a former chairman of the Hong Kong Bar Association, a member of the Executive Council, and convener of the Path of Democracy.
The views do not necessarily reflect those of China Daily.
