Further explanations on National Security Law from legal perspective

Many have made their suggestions to the Liaison Office of the Central People's Government in respect of the work by the Standing Committee of the National People’s Congress (NPCSC) and some made their points or letters public. Last Friday, I noticed one of the bodies representing a branch of the legal profession made some suggestions in an open statement. Yet the proprietary or feasibility of such opinions or suggestions must be viewed in context of the legal and constitutional structure of the HKSAR and with the proper background and understanding of the nature of the Decision and the legislation to be enacted.

Pursuant to the authorisation set out in Article 6 of the Decision passed by the National People’s Congress (NPC) on May 28, the National Security Law is to be enacted by the NPCSC, and after consulting the Basic Law Committee and the Government of the HKSAR, it will be added to Annex III of the Basic Law to be promulgated by the HKSAR and applicable to the HKSAR. It will also be in Annex III and part of the Basic Law of the HKSAR.

The People’s Republic of China (PRC) has two legal systems, the civil law system and the common law system. It is impracticable and unreasonable to expect that everything in a national law, the National Security Law, will be exactly as what a statute in the HKSAR common law jurisdiction would be like. Yet of course, the legislation should be clear and understood in the HKSAR.

As I have stated in many occasions with various media, there are a number of commonalities between the civil and common law systems respectively in the Mainland and the HKSAR, such as retrospectivity, presumption of innocence, burden of proof and standard of proof, legal certainty etc. This point was similarly made with more details on PRC law, by the Deputy Director of the Hong Kong and Macao Affairs Office of the State Council, Mr Zhang Xiaoming, in his speech on June 8 in commemoration of the 30th anniversary of the promulgation of the Basic Law. His speech and that of the Vice-Chairperson of the HKSAR Basic Law Committee under the Standing Committee of the National People's Congress, Mr Zhang Yong, are available at https://webcast.info.gov.hk/revamp/eng/video/0000000826_mp4.html.

Discussions generated on sunset clause is also interesting. The NPCSC has the power to add or delete from the list of laws in Annex III after consulting the Basic Law Committee and the Government of the HKSAR, and as such there is indeed no need for what has been described as a “sunset clause”. To properly embark on such discussions, it may be useful to remember that the National Security Law to be enacted by the NPCSC is a national legislation providing for the legal framework and enforcement mechanism from a national level. In Article 3 of the Decision of the NPC, it also stated that the HKSAR should as soon as possible complete the legislation that has to be done for national security in accordance with the requirements of the Basic Law. Such legislation to be passed in the HKSAR will be dealing with national security from the perspective of the SAR and may well not be the complete ambit of national security that affects 1.4 billion people.

In summary, the Decision of the NPC and the enactment of the legislation by the NPCSC for inclusion in Annex III of the Basic Law to be promulgated by the HKSAR are premised on constitutional and legal grounds. The circumstances facing Hong Kong and indeed as more clearly evidenced by the uncalled for reactions of some countries really reinforce the need and urgency for the same. Finally, it was stated clearly in the Decision, “safeguarding national sovereignty, security and development interests, upholding and improving the ‘one country, two systems’ regime, maintaining the long-term prosperity and stability of Hong Kong, and safeguarding the legitimate rights and interests of Hong Kong residents.” Therefore, the legislation to be enacted for the HKSAR only aims to prevent, curb and sanction an extremely small minority of criminals who threaten national security, so as to safeguard the prosperity and stability of Hong Kong and the implementation of "one country, two systems".

June 14, 2020