SCIO briefing on the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region
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E-mail China.org.cn, July 4, 2020
China Daily:
Article 23 of the Basic Law of the HKSAR stipulates that the HKSAR shall enact laws on its own to prohibit any act and activity endangering the national security. After the Standing Committee of the NPC completes this particular piece of legislation, will the HKSAR still need to complete the legislative process in regard to Article 23? How should the relationship between Article 23 and relevant laws passed by the NPC Standing Committee, as well as the existing laws in Hong Kong be handled? Thank you.
Shen Chunyao:
Article 23 of the Basic Law of Hong Kong is the most well-known clause both in Hong Kong and on the mainland. Therefore, when our country is taking legislative measures this time, including decisions made by the NPC and the promulgation of laws by the NPC Standing Committee, many people are concerned about Article 23. This issue has been studied seriously in the process of forming, proposing and promoting the work plan of "decision plus legislation." Article 3 of the NPC Decision on Establishing and Improving the Legal System and Enforcement Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region adopted at the third session of the 13th NPC made clear requirements. And Article 7 of the newly adopted Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region has also clearly stipulated that HKSAR shall complete, as early as possible, legislation for safeguarding national security as stipulated in the Basic Law of Hong Kong and shall refine relevant laws.
Just now, Mr. Zhang mentioned 23 years, which is a long period of time indeed. Article 23 also happens to relate to the same number. So, the requirement for HKSAR to complete the legislative process as early as possible is very clear. HKSAR's chief executive and the HKSAR government have also made clear statements that relevant laws will be refined after the promulgation of national laws. I would like to explain the following situations, as many Chinese people including Hong Kong compatriots are very concerned about.
First, what does Article 23 stipulate? It stipulates that HKSAR should enact laws on its own to prohibit seven types of acts, including treason, secession, sedition, subversion against the Central People's Government, and theft of state secrets, as well as two types of activities related with foreign political organizations or bodies. Article 6 of the decision adopted by the third session of the 13th NPC authorized the NPC Standing Committee to enact relevant laws to effectively prevent, suppress and impose punishment for four types of acts and activities endangering national security, namely, secession, subversion of state power, organization and perpetration of terrorist activities, and collusion with a foreign country or with external elements to endanger national security in relation to the HKSAR. So, Article 23 lists seven types of acts and activities, whereas the national security law stipulates four. Secession and subversion are included in both. As for the elaboration of subversion, it is "subversion of the Central People's Government" in Article 23; while it is "subversion of state power" in the national security law, whose connotation is more extensive and comprehensive.
Second, the two are very different. In addition to the four categories of crimes endangering national security that are punishable, the newly introduced law also includes a lot of other important content. I just mentioned that the newly introduced law displays three types of legal norms, namely, substantive law, procedural law and organic law. To expand my interpretation a little bit, I would say the content has "two levels," including institutional arrangements at the special administrative region level and at the national level. And "two aspects:" one is to establish and improve the legal system, and the other is to establish and improve the enforcement mechanisms. Namely, the two aspects of the legal system and the enforcement mechanisms. The legal norms of substantive law, procedural law and organic law I just mentioned are all included. That is to say, the newly introduced law contains much broader content than that originally envisaged for Article 23 of the HKSAR Basic Law.
Third, it is not a replacement. Neither the Decision of the NPC nor the law promulgated by the NPC Standing Committee can replace the provisions of Article 23 in the HKSAR Basic Law that require the HKSAR to make legislation on its own.
Fourth, the HKSAR shall perform its duties of safeguarding national security, including completing the relevant legislation as stipulated in the Basic Law as soon as possible. There is also a sentence clearly stated in the law, "refine relevant laws," which means that the establishment and improvement of the legal system for safeguarding national security at the level of the HKSAR may not be limited to the legislation as stipulated by the Article 23. Last year, there was a case in the HKSAR, which was based on the current Societies Ordinance and the Crimes Ordinance. There are still some local laws in Hong Kong that are also related to national security. Therefore, improving the legal system at the special administrative region level certainly includes enacting the legislation required by Article 23 of the Basic Law as soon as possible, as well as other aspects.
Finally, there is one more important point. Any legislation of the HKSAR to safeguard national security and its implementation must not conflict with the NPC's Decision and the law newly adopted by the NPC Standing Committee, which are at the national level. These are important institutional arrangements. The third session of the 13th NPC, and the 19th and 20th sessions of the Standing Committee of the 13th NPC have made clear judgments: The Decision and the law are in compliance with China's Constitution and the HKSAR Basic Law. The law is also in compliance with the spirit of the NPC's Decision. Therefore, this is an overall and closely-related institutional arrangement that should be able to be effectively implemented.
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