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
Hong Kong Ta Kung Wen Wei Media Group:
The law on safeguarding national security in Hong Kong stipulates that a resident of the Region who stands for election or assumes public office shall confirm in writing or take an oath to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China in accordance with the law. It also stipulates that a person who is convicted of an offence endangering national security by a court shall be disqualified from standing as a candidate in the elections and from holding any public office upon conviction. Is this to disqualify the opposition before the Legislative Council election in September? Will opposition candidates lose their eligibility for opposition to the law on safeguarding national security in Hong Kong? Does allegiance to the HKSAR mean allegiance to the People's Republic of China? Thank you.
Zhang Xiaoming:
The public servants' oath and allegiance system is standard international practice. The public servants' oath and allegiance system stipulated in Article 6 of the law on safeguarding national security in Hong Kong refer to the provisions of public servants' oath and allegiance in Article 104 of the Basic Law. There are two differences between what is in the law on safeguarding national security in Hong Kong and Article 104 of the Basic Law. First, the scope of sworn allegiance has been broadened, and it is not about just a few objects defined by the Basic Law, including the chief executive, principal officials, members of the Executive Council and the Legislative Council, judges of the courts at all levels and other members of the judiciary. The new scope is not limited to these categories of people, but includes all public servants. Second, the national security law clearly stipulates that people who assume public office through election shall confirm in writing to uphold the Basic Law of the HKSAR of the People's Republic of China, and are willing to swear allegiance to the HKSAR of the People's Republic of China when they stand for election. In fact, the HKSAR government adopted this approach back in 2016. Whether you stand in the Legislative Council election or the district council elections, you must sign a document making such a commitment. Now, Hong Kong's national security law actually legalizes practices already effective in the region. This is entirely reasonable and very necessary.
I need to add one point here. Whether it is the oath and allegiance system stipulated in Article 6 of the law on safeguarding national security in Hong Kong or the content of the allegiance swearing stipulated in Article 104 of the Basic Law, the words "allegiance to the HKSAR of the People's Republic of China" mentioned there undoubtedly include the meaning of allegiance to the country. The reasoning for this is also obvious and is determined by the legal status of the HKSAR. It is an inseparable part of the People's Republic of China and a local administrative region enjoying a high degree of autonomy in the People's Republic of China. Of course, the objects of public servants' oaths of allegiance should first include the state. You cannot separate the HKSAR from the People's Republic of China, and understand the oath of allegiance merely as allegiance to the HKSAR. I am not saying this pointlessly: some people in Hong Kong do have such an opinion. There is a legal basis for my understanding. In addition to my interpretation of some basic provisions of the Basic Law just now, the NPC Standing Committee previously explained the provisions of Article 104 of the Basic Law concerning oaths in November 2016. The explanation made it clear that swearing allegiance refers to the legal commitments to the People's Republic of China and its HKSAR, which is legally binding. It clearly clarifies the two subjects.
As for your question about whether the national security legislation will be used to provide legal basis for disqualifying opposition candidates in September's Legislative Council election in Hong Kong, I have to say, such speculation about the purpose of the legislation is of an ultra-utilitarian and short-sighted nature. The fundamental purpose of the central government's legislation of such an important law is to safeguard China's national security, restore stability in the HKSAR, and ensure the sound and sustained implementation of the "one country, two systems" principle, which is a much higher purpose than all the speculations.
You have just asked whether opposition candidates would be disqualified due to their negative attitude to the national security law for Hong Kong. This question needs to be seriously considered. However, I believe that the HKSAR government will provide a specific definition in this regard in accordance with the Basic Law of the HKSAR, the national security law for the HKSAR and relevant provisions of other laws in force there. I would like to stress that the national security legislation doesn't target the opposition or the "pan-democratic" camp in the HKSAR as a hypothetical enemy. This is not our point. The legislation targets only a very few criminals that seriously undermine national security, and does not focus on the entire opposition camp. Hong Kong is a pluralistic society with diverse political views. The implementation of the "one country, two systems" in Hong Kong already speaks volumes regarding the political tolerance of the central authorities. Different political views, including those not favoring the government's approach, can still exist. Comrade Deng Xiaoping once said that, after the return of Hong Kong, the local people could still condemn the CPC if they so wished; however, they should not take any actions or turn Hong Kong into an anti-mainland base under the pretext of promoting "democracy". That is to say, there are bottom lines and boundaries that cannot be crossed in regard to the "one country, two systems". A capitalist society also has political game rules and bottom lines. Therefore, all parties should abide by the rules and avoid breaching established bottom lines. In this regard, I think the opposition in Hong Kong should undertake reflection and make appropriate adjustments.
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