(Xinhua/Li Gang)

OPINION-Draft National Security Law for Hong Kong: Some Observations

On June 20, the Standing Committee of the National People’s Congress ended its 3-day meeting in Beijing, going through a draft national security law for Hong Kong. On June 17 and 18, the Standing Committee members listened to the Legal Work Committee’s progress of preparing the draft national security law.

The draft national security law, according to its abstract from the Xinhua news agency, has six chapters and sixty-six stipulations. It includes the following six areas.

First, the draft law concretizes the “constitutional duty” of the HKSAR government to protect national security. As such, “the executive, legislative and judicial branches of the Hong Kong government should prevent, stop and penalize those actions and activities that endanger national security.” Moreover, the “Hong Kong comrades” should “protect national security and not engage in any activity that endangers national security.”

Hong Kong residents who participate in elections and who become public officials “must sign documents to confirm and swear allegiance to their support of the Basic Law and the Hong Kong Special Administrative Region (HKSAR).” The Hong Kong government should also “strengthen supervision and management, if necessary, of the measures concerning national security in schools and social organizations.”

Second, the draft law concretizes the principle of the rule of law in the protection of national security. The Hong Kong government should “respect and protect human rights” in accordance with the Basic Law and the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights.” These rights include the freedom of speech, press, publication, assembly, rallies and protests. Moreover, “anyone who has not yet received a verdict from the judicial organizations is presumed as being not guilty.”

Third, the draft law concretizes the related institutions and duties of those organizations protecting national security. Specifically, the HKSAR sets up a Protection of National Security Commission (PNCS) responsible for protecting national security. This Commission will be chaired by the Chief Executive and it includes members such as the Chief Secretary, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Police Commissioner, the person-in-charge of national security inside the police force, the Director of Immigration, the Director of Customs and Excise Department, and the Director of the Chief Executive Office.

Under the HKSAR PNSC, there is a secretariat whose composition is nominated by the Chief Executive and approved by the central government. Most importantly, the PNSC will have a national security adviser who will be appointed by the central government in Beijing, and who will give advice to the PNSC in its implementation of the duty of protecting national security. Furthermore, the Hong Kong police force sets up its unit that “protects national security and is equipped with the executive power.” Finally, the Secretary for Justice sets up a unit responsible for the prosecution and legal matters relating to national security.

Fourth, the draft law concretizes the crimes and penalties, including the crime of “splitting the country,” “subverting the country and its regime,” “the crime of terrorist activities,” and “the crime of collaborating with foreign countries or external forces” that endanger national security.

Fifth, the draft law clarifies the jurisdictions, the applicability of the law and the related procedures in protecting national security. “Except for special circumstances, the HKSAR can exercise jurisdictions over the criminal cases under the national security law.” The HKSAR can investigate, prosecute, and adjudicate the related cases; execute the penalties; and cope with the litigation procedures by using the national security law and the Hong Kong law.

Most significantly, the Hong Kong Chief Executive “should designate certain judges,” including those present, past and qualified judges from the district court, High Court, Appeal Court and the Court of Final Appeal, to manage cases concerning national security and its related crimes.

Sixth, the central government is going to set up its National Security Commission (NSC) in the HKSAR. The NSC will analyse and study the circumstances of national security in Hong Kong, coming up with its opinions and suggestions. It also “supervises, leads, coordinates and supports” the HKSAR in the implementation of the duty of protecting national security.

The NSC will also collect intelligence on national security and manage the related cases in accordance with the law. The NSC will also be under supervision in accordance with the law and “cannot intrude into the legal rights of individuals and organizations,” for its staff members will have to respect and follow the national law and Hong Kong law.

The Xinhua news agency stresses that “the NSC and its related national security agency can exercise jurisdictions over a minority of cases that endanger national security.” These cases will fall into the jurisdiction of the central government – “an important expression of the centre’s comprehensive jurisdiction” over the HKSAR. Preserving this “comprehensive jurisdiction,” according to Xinhua, may help to prevent the scenario of Article 18 of the Basic Law, namely the central government declaring a state of emergency in the territory of the HKSAR.

Several observations on the content of the draft law can be made.

First, the brief relevance to the need for the implementation agents to observe the Hong Kong law; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights is an obvious move to placate the anxiety of some Hong Kong people that the national security law would endanger the existing freedoms enjoyed by the local residents. The NSC staff members from the central government, for instance, will be expected to observe not only the national law but also the Hong Kong law.

A lawmaker jumps on furniture as he tries to follow Hong Kong’s Chief Executive Carrie Lam (not pictured), as Lam leaves the Legislative Council in Hong Kong, China October 17, 2019. REUTERS/Kim Kyung-Hoon

Second, institutionally speaking, the Protection of National Security Commission in Hong Kong has a slightly different composition compared with the National Security Commission in Macau. While the Macau National Security Commission is also chaired by the Chief Executive, it is composed of members such as the Chief Secretary for Administration and Justice, the Security of Security, the Police Commissioner and an advisor of the Chief Executive Office.

The Hong Kong National Security Commission is similar in its chairmanship and composition, but the membership also includes the Financial Secretary, the Director of Immigration, and the Director of Customs and Excise. The implications are that (1) there might really be mainlanders who sneaked into Hong Kong and escaped from Hong Kong to overseas countries, and (2) there might be serious smuggling cases in the past. One can easily recall Hong Kong’s news reports in March 2019 that the extradition bill initiated by the HKSAR government could help the central authorities, especially the public security, to pursue and arrest some 300 mainlanders who stayed in the HKSAR and who laundered money in the territory.

Third, while the crime of “collaborating with foreign countries or external forces” will perhaps be spelt out later in the final version of the law, it remains ambiguous but will likely act as a formidable deterrence against some Hong Kong people who attempt to lobby foreign countries for imposing sanctions on the HKSAR in the event of the promulgation of the national security law. 

Fourth, so long as the centre maintains the jurisdiction over some criminal cases concerning national security, this “comprehensive” jurisdiction constitutes another deterrence against those activities that endanger national security. It is unclear what cases will be falling under the centre’s jurisdictions; nevertheless, the ambiguity exactly serves the purpose of having deterrence impacts. 

As some Hong Kong media reports immediately speculate, the National Security Commission established by the central government in Hong Kong would perhaps deal with not only any “independence activities” pertinent to Xinjiang, Tibet and Taiwan but also cases concerning “international espionage.” Taiwan and foreign activities in the HKSAR will be increasingly sensitive and under tighter surveillance.

Fifth, the delegation of the authority of selecting judges, who deal with national security cases, to the Hong Kong Chief Executive is a shrewd move that avoids explicitly excluding foreign judges with foreign citizenship. If the Chief Executive starts selecting appropriate judges to deal with national security cases, he or she may be advised by the national security adviser sent by Beijing, or by the PNSC. Judges with foreign citizenship are still theoretically and practically included in the Chief Executive’s selection of judges on the basis of their expertise and knowledge, but not necessarily their political allegiance.

Overall, the content of the draft law as reported by Xinhuaand Hong Kong news reports shows that the central authorities are very decisive in the construction of a new national security mechanism in Hong Kong, in an attempt to allay the fears of some Hong Kong people by mentioning the relevance of Hong Kong law and international law, and in the effective deterrence of any activity deemed as endangering national security in the years to come.