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Correctly Understanding the National Security Legislation from the Perspective of the Constitutional Order



Last weekend, the Hong Kong community again saw the social unrest in Causeway Bay and Wanchai carried out by some under the pretext of protest against the draft Decision on national security legislation (draft Decision) to be passed by the National People’s Congress (NPC). What’s even more worrying is that some wrongly claimed that the draft Decision tramples on “one country, two systems” and is in breach of the Basic Law.

The first question that one should ask is whether the NPC and its Standing Committee (NPCSC) have the power and authority to introduce law and other legal instrument in the People’s Republic of China (PRC). The answer is a clear “yes” because under Articles 57 and 58 of the Constitution of the PRC (PRC Constitution), the NPC is the highest organ of state power in the PRC, and the NPC and the NPCSC exercise the legislative power of the state to introduce laws and other legal instruments.

It has also been made clear that the Decision is to be made pursuant to Article 31, 62(2), (14) and (16) of the PRC Constitution and the relevant provisions of the Basic Law. Under Article 6 of the draft Decision, the NPC delegated the NPCSC the duty to make the national security law applicable to the HKSAR.

The second question is whether such power and authority covers national security. Again, the answer is a clear “yes” because there is not any doubt that national security is a matter of national interest that concerns the whole population of the PRC and falls squarely within the purview of the Central Authorities. National security is never part of Hong Kong’s autonomy. As such, the national security legislation to be enacted by the NPCSC is obviously within the ambit of “defence and foreign affairs as well as other matters outside the limits of the autonomy of the [HKSAR]” as under Article 18(3) of the Basic Law.

The third question is on the relationship between Article 18(3) and Article 23 of the Basic Law. As a start, it is essential to understand that pursuant to Article 12 of the Basic Law, Hong Kong is a local administrative region of the PRC that comes directly under the Central People’s Government. Under Article 23 of the Basic Law, the HKSAR is authorised to enact laws to prohibit specific acts relating to national security. Given the purpose and context of Article 23 as well as the ordinary meaning of the terms used, such authorisation clearly does not preclude the Central Authorities from introducing a national security legislation.

It is fundamental to recognise that the Central Authorities holds the ultimate responsibility for national security in all local administrative regions. It is trite that a delegation of power by the principal to the delegatee is not an abrogation or abdication of the responsibility and power of the principal. As such, any right minded person can conclude that the enactment of the national security law by the NPCSC and the addition of such law to Annex III of the Basic Law to be promulgated by the HKSAR is in compliance with Article 18(3) and is not in any way in conflict with Article 23 of the Basic Law.

As can be seen from the above, the draft Decision and the passing by the NPCSC of the national laws is in compliance with the “one country, two systems” principle as encapsulated in the PRC Constitution and the Basic Law.

Given that the details of the design of the national security legislation to be enacted by the NPCSC and introduced to Annex III of the Basic Law to be promulgated by the HKSAR are not yet known, now is not the time to make unwarranted speculations. Unfortunately, some have apparently and perhaps misguidedly tried to smear and vilify the draft Decision as well as the national security legislation to be enacted by the NPCSC as representing “the death of one country, two systems”. Such an assertion does not stand legal scrutiny. The legal process to be adopted by the NPC and NPCSC is enshrined in law, justified in logic and reasonable in the circumstances of the situation in the HKSAR.

As clearly stated in the draft Decision and the Explanatory Statement of the draft Decision, when making the Decision, the NPC will comply with the laws, the “one country, two systems” principle and also endeavour to safeguard the lawful rights and interests of people in Hong Kong. Indeed, the very fact that the draft Decision on the national security legislation to be submitted to the NPC is in compliance with the Basic Law. The Central Authorities and the HKSAR are conducting our internal affairs of our own state in accordance with our Constitution and the Basic Law, and importantly in full accord with the “one country, two systems” principle.

May 26, 2020

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