Safeguarding national security

Hong Kong has experienced social unrest with frequent violence. There is even advocacy of independence. In view of the increasingly serious situation the Hong Kong Special Administrative Region (HKSAR) is facing in relation to national security and the difficulty of the executive and legislative authorities of the HKSAR to complete on their own legislation for safeguarding national security in the foreseeable future, the National People’s Congress (NPC) has taken steps at the national level to improve the legal system and enforcement mechanisms for the HKSAR to safeguard national security. The HKSAR Government has clearly pledged its support to the NPC’s decision. Here I wish to explain the rationale involved in relation to the Constitution and the Basic Law, and the legal instruments that are being used.

First, one must understand that the NPC is the highest organ of state power authority of the People’s Republic of China (PRC). Under the Constitution, Article 62 in particular, the NPC has the power to introduce laws and other legal instruments including making Decisions. As an example, the HKSAR was established under the Decision of the NPC on the Establishment of the HKSAR pursuant to Article 31 of the Constitution on 4 April 1990. As a matter of fact, the Basic Law was passed the same day as a national law by the NPC pursuant to Articles 31 and 62(14).

The draft Decision to be deliberated by the NPC and the Explanatory Statement of the draft Decision have been published. The Decision is to be made in accordance with Articles 31, 62(2), (14) and (16) and the relevant provisions of the Basic Law. Article 31 of the Constitution provides that “the state may establish special administrative regions when necessary” and “the systems instituted in special administrative regions shall, in light of specific circumstances, be prescribed by laws enacted by the National People’s Congress”. Article 62(2), (14) and (16) provide that the National People’s Congress exercises the following functions and powers “to supervise the enforcement of the Constitution”, “to decide on the establishment of special administrative regions and the systems to be instituted there” and “to exercise such other functions and powers that the highest organ of state power should exercise”.

It is beyond doubt that the NPC has the power to make Decision relating to the HKSAR and in particular, as in the case here, to ensure that the Constitution is implemented. When making the Decision, the NPC will also comply with the laws and as clearly stated in the Explanatory Statement and the draft Decision the “one country two systems” principle is to be upheld and implemented. Based on the Constitution, the NPC can also delegate to its Standing Committee of the National People’s Congress (NPCSC) to make laws and that is exactly what the draft Decision paragraph 6 is referring to.

There are doubts as to whether the NPCSC can legislate national security laws for the HKSAR. Such doubt is totally unwarranted. National security is never part of HKSAR’s autonomy, and indeed never a matter that concerns only the HKSAR. National security affects 1.4 billion nationals and it is trite that it has to be and is a matter that is entirely within the purview of the Central Authorities. When the threats to territorial integrity, secession and subversion of a nation persists coupled with a lack of laws that addresses these, it is natural and indeed proper for the Central Authorities to take action and propose to the NPC to make a Decision and to introduce a national law applicable to the HKSAR. Such a national law is within the ambit of “defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region” set out in Article 18(3) of the Basic Law.

The four areas to be covered in this national law are secession, subversion, terrorist activities endangering national security and interference by foreign political forces. These are core national security matters of any state and that is why the NPC considers it necessary to make such Decision at a national level for a national law to be introduced into Annex III and to be promulgated by the HKSAR.

Paragraph 3 of the draft Decision also explicitly points out that it is the HKSAR’s constitutional responsibilities to safeguard national sovereignty, unity and territorial integrity; stresses that the HKSAR should as soon as possible complete the national security legislation stipulated in the Basic Law of the HKSAR.

Whilst the HKSAR is authorized to legislate national security laws, it does not preclude the Central Authorities from legislating at a national level for national security. Further as a matter of fact, the HKSAR simply has not been able to legislate at all for all these years.

Upholding national sovereignty is the duty of each and every national. When there is no country, there is no home. These are basic principles that any right minded person will agree. To blindly vilify laws relating to national security is totally irrational. It is high time we grapple and address the need to legislate to protect national security and as the HKSAR cannot do it, it is not surprising that the NPC takes action at the national level.

I hope the above explanation has provided some understanding of the legal basis for the two steps to be taken: the draft Decision to be passed by the NPC, and the enactment of a national law by NPCSC to be introduced to Annex III of the Basic Law to be promulgated by the HKSAR.

May 24, 2020