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
Xinhua News Agency:
According to the law on safeguarding national security in the HKSAR, the central government have jurisdiction over four categories of crimes endangering national security. What principles and approaches will the central government follow when exercising jurisdiction in regard to such cases? How will the central government and the HKSAR define their respective jurisdiction in this regard?
Shen Chunyao:
This question is very important. Article 55 of the national security law makes stipulations concerning the circumstances under which the central government will exercise jurisdiction over cases concerning offences endangering national security as defined under this law. First, it is the duty of the HKSAR, under the constitution, to safeguard national security. The law stipulates that the HKSAR establishes the Committee for Safeguarding National Security. Its nature is also defined. Article 12 stipulates that the committee assumes primary responsibility for safeguarding national security in the region "under the supervision of, and accountable to, the Central People's Government". This is the overall requirement to be followed in exercising jurisdiction over handling and trial of cases. Article 40 stipulates that the HKSAR has jurisdiction over cases concerning offences as defined under this law, which is one of the general provisions. However, this also includes the following proviso: "except under the circumstances specified in Article 55 of this law" that makes stipulations concerning the specific circumstances under which the Office for Safeguarding National Security of the Central People's Government in the HKSAR will exercise jurisdiction over a case involving an identified offence under this law. What are the specific circumstances? Under the law, the office exercises jurisdiction over a case concerning any offence deemed to endanger national security, in the following circumstances: if the case is complex due to the involvement of a foreign country or external elements, thus making it difficult for the region to exercise its jurisdiction; a serious situation occurs where the government of the region is unable to effectively enforce this law; or a major and imminent threat to national security has occurred. Realistically speaking, we are unwilling to see Hong Kong facing such difficulties and major and imminent threats, but institutional building must take all risks and factors into consideration.
Under these specific circumstances, the initiating procedure of the jurisdiction of the office for safeguarding national security in regard to cases has very strict and specific stipulations. What procedures should be followed? First, the Government of the Hong Kong Special Administrative Region or the office itself shall make a request. Second, the request, no matter who makes it, will be approved by the Central People's Government. Following such procedures, and only under the three circumstances already mentioned, can the jurisdiction of the central authorities over relevant cases be initiated and exercised. When the office exercises jurisdiction over a case concerning any offence endangering national security, the enforcement of this law consists of a series of related links. The office first initiates an investigation into the case, the Supreme People's Procuratorate designates a prosecuting entity to prosecute it, and the Supreme People's Court shall designate a court to adjudicate it. The Criminal Procedure Law of the People's Republic of China and other related national laws shall apply to procedural matters, including those related to criminal investigation, examination and prosecution, trial, and execution of penalty. Overall, this is a complete set of law enforcement and judicial activities, which are stipulated in Articles 55, 56 and 57 of the law.
It is important to note that the Office for Safeguarding National Security of the Central People's Government in the HKSAR and the relevant national authorities only exercise jurisdiction over a very small number of cases that may leave the country's national security in grave peril, as stipulated in the law. Although these cases are rare, the legal institutional arrangements must exist. This is also the manifestation of constitutional order of the HKSAR as mandated by the Constitution and the Basic Law, and the central government's overall jurisdiction over HKSAR. It supports and strengthens the effective law enforcement and judicial activities of the law enforcement and judicial authorities of the HKSAR. It can help prevent the possible situation or the situation that may invoke Article 18(4) of the Basic Law of Hong Kong, where a "State of Emergency" is declared. Once that happens, the situation would be pretty serious. The central government exercising jurisdiction over certain cases under certain circumstances can help avoid the severe situation, as stated under Article 18(4) of the Basic Law. So that we can try to avoid such severe situations and safeguard national security in the HKSAR with low-intensity approach. In conclusion, this institutional arrangement is an integral part of the legislation.
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