Very often, the simple truth is the most difficult to catch. As far as Hong Kong is concerned, the simple truth is that it is sailing through a storm whipped up by geopolitical and economic headwinds that look set to continue lashing the city for the foreseeable future.
It does not take too much imagination to envision a scenario where hostile external forces will exploit the national security risks triggered by the stormy environment and use the Hong Kong Special Administrative Region as a Trojan horse to destabilize China. As a result, it is necessary to speed up the enactment of the local security law, the proposed Article 23 legislation, to safeguard the core national interests and shift the city’s focus to socioeconomic development.
Emerging from the shadow of procedural procrastination, lawmakers have sped through their scrutiny of the Safeguarding National Security Bill. A Legislative Council bills committee began vetting the legislation immediately after the second reading, with weekend sessions to speed up the process. As Secretary for Security Chris Tang Ping-keung has pointed out, the earlier we complete the legislative work, the sooner we can guard against national security risks.
The bill runs to 212 pages and establishes 39 crimes. When the National Security Law for Hong Kong (NSL) was promulgated in June 2020, critics suggested that the enactment of the law portended the end of the principle of “one country, two systems”.
Anyone who supports the above argument is a stranger to the truth. Given the unprecedentedly dangerous situation created by anti-China disruptors and rioters in Hong Kong in the second half of 2019, the promulgation of the NSL was necessary and reasonable. As some acts that can endanger national security were not covered by the NSL, what remains at stake is a genuine and urgent need to beef up the NSL with the completion of Article 23 legislation. After all, safeguarding national security is almost universally recognized as the foundation of “one country, two systems”.
The draftsmen of the bill stand committed to the principle of “one country, two systems”. The Basic Law provides for the continuity of Hong Kong’s common law system, and it follows that the implementation of Article 23 should be effected through making use of existing legislation as far as possible. It is worth noting that the sentencing standards for the proposed national security offenses are in line with the conviction and sentencing system of common law, and the draft bill fully reflects the spirit of the rule of law. Besides, it is entirely in accordance with the consensus revealed by the public consultation and dovetails with the actual situation in the city.
Local officials said almost 99 percent of the more than 13,000 responses received over a four-week consultation period that ended last month were in support of the proposed Article 23 legislation. It has proved beyond a shadow of doubt that the majority of respondents understand that the city has a constitutional duty to legislate the proposed law
Local officials said almost 99 percent of the more than 13,000 responses received over a four-week consultation period that ended last month were in support of the proposed Article 23 legislation. It has proved beyond a shadow of doubt that the majority of respondents understand that the city has a constitutional duty to legislate the proposed law. After examining the consultation document, most of the respondents have strengthened their awareness of the genuine and urgent need to safeguard national security in the city. The accelerated legislative procedure is unlikely to have any impact on the public because most residents have been expecting the bill to be passed sooner or later.
Some critics are worried that the bill will shift Hong Kong’s foundation of individuals’ freedom from the rock to the sand. The British Consulate in Hong Kong, for example, suggested that the legislation should align with international standards and uphold basic rights and freedoms. In response to the above “skepticism”, our think tank would like to state in no uncertain terms that the principle of judicial independence has deep roots in our soil. Because we expect our judges to make judgments without fear or favor, we strongly believe that people’s fundamental rights and freedoms under Article 27 and Article 39 of the Basic Law are protected by the courts. In fact, these rights and freedoms have also been incorporated into the NSL.
As Nick Chan Hiu-fung, a Hong Kong deputy to the National People’s Congress, has correctly pointed out, the proposed law meets all applicable international conventions and standards, protects all legitimate rights and freedom under national and local laws, and includes sufficient procedural safeguards. The proposed law also metes out penalties similar to those adopted by other common-law jurisdictions. In some cases, Hong Kong’s penalties are substantially more lenient than those elsewhere. For instance, the maximum penalty for receiving or organizing military drilling involving an external force is five to 10 years’ imprisonment respectively under the proposed law. The punishment in Australia is much higher.
Under the proposed law, the initial detention period for those accused of national security offenses will be extended to up to 14 days from the current two days with the permission of the courts. But few would disagree that the National Security Act 2023 (NSA) of the United Kingdom is harsher than the proposed Article 23 legislation. Under the NSA, on the secretary of state’s reasonable belief that someone is, or has been, involved in “foreign power threat activity”, that person can be detained for up to five years without notice or trial.
Mention should also be made of the Internal Security Act (ISA) of Singapore. The city state can deploy preventive detention for up to two years, which may be renewed, for suspects in cases involving the country’s national security. Judicial review of decisions taken under the ISA is only possible to ensure procedural compliance, and Singapore is not a party to the International Covenant on Civil and Political Rights. Former chief executive Leung Chun-ying has reminded us that Hong Kong’s proposed Article 23 legislation is milder than that of Singapore’s national security law as Hong Kong’s independent judiciary, rather than an executive body, will determine what amounts to external interference.
Members of the LegCo bills committee deserve great credit for responding to the concerns of business communities regarding the definitions of “external forces” in the bill. References to “external forces” were made throughout the bill as the maximum penalties for some offenses would be higher when collusion with an “external force” is involved. Members of the bills committee do recognize the need to clear up any ambiguity because of the potentially adverse impact on Hong Kong’s international connectivity and status.
Nothing is perfect. There is still room for the proposed law to be refined and improved. Balancing all the positive and negative feedback, the bill will meet all applicable conventions and standards of major common law jurisdictions. Our think tank is greatly impressed by the accommodative approach taken by the HKSAR government toward some constructive feedback submitted during the consultation period. As law professor Albert Chen Hung-yee has pointed out, the draft bill had modified and refined the government’s original proposals to address most of the concerns expressed during the consultation exercise. We earnestly hope that the government will address the concerns raised by both Executive Councilor Regina Ip Lau Suk-yee and the business community regarding the “broad” definitions of “external forces” in the draft bill.
The author is a barrister, part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, chairman of Chinese Dream Think Tank, and a district councilor.
The views do not necessarily reflect those of China Daily.
