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
Phoenix TV:
Since the HKSAR national security law came into force, people have been concerned about whether the rights and freedoms of Hong Kong residents will be restrained in the prevention of, suppression of, and imposition of punishment for acts and activities endangering national security in the HKSAR. Will the law conflict with some international covenants and local laws on human rights in the HKSAR? Thank you.
Shen Chunyao:
In studying and drafting laws, China attaches great importance to the principle that human rights shall be respected and protected. The HKSAR and the whole country have placed great emphasis on promoting all-round progress on human rights. The Constitution of the People's Republic of China clearly states that the People's Republic of China shall practice law-based governance and that the state shall respect and protect human rights. Relevant provisions are also found in other Chinese laws such as the Criminal Law of the People's Republic of China and the Criminal Procedure Law of the People's Republic of China. It is also clearly defined in the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region and placed in a prominent position. The law's General Principles, which govern the full text, clearly state that human rights shall be respected and protected in safeguarding national security in the HKSAR and the principle of the rule of law shall be adhered to.
Important principles of criminal law shall be implemented in handling cases and imposing punishment for offences that endanger national security. These are clearly defined in the General Principles section of the HKSAR national security law, including the principle of legality, which is also known as "no crime without the law and no punishment without the law." A person who commits an act which constitutes an offence under the law shall be convicted and punished in accordance with the law. No one shall be convicted and punished for an act which does not constitute an offence under the law. Another very important principle is presumption of innocence. The law stipulates that the rights in judicial proceedings that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be protected. The principle of protection against double jeopardy is also reflected in the law, where it is clearly prescribed that no one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in judicial proceedings. All of these important principles are stipulated in the General Principles section of the law.
Moreover, respect for and protection of human rights shall not be limited to criminal proceedings. The law also clearly stipulates that the rights and freedoms enjoyed by HKSAR residents under the Basic Law of the HKSAR and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall be protected in accordance with the law. Hence, the law is in line with the relevant provisions and principles of the Basic Law of the HKSAR and protection of human rights under the law is not just limited to criminal proceedings, but also widely covers rights and freedoms of speech, of publication and of assembly.
To safeguard national security, it is necessary to impose punishment for offences endangering it in accordance with the law. Law enforcement and judicial authorities shall prevent and suppress such offences according to law and those who are involved in them shall be investigated for criminal responsibility in accordance with relevant provisions of the criminal law. Therefore, many people are concerned about the impact on human rights, especially in regard to personal freedom, right to free expression, including press and publication work, freedom of assembly, and so on. Any right has clear boundaries and their scope is prescribed by law. As Mr. Zhang Xiaoming mentioned, "one country" has a bottom line, and "two systems" has a certain boundary. It is not permitted to breach the bottom line and the boundary required by rule of law. That is the case for the HKSAR, and the same also goes for China and any other country in the world. Rights and freedoms should be fully exercised, but within the scope of the law and in accordance with legal requirements. People who breach the bottom line and challenge its scope should bear corresponding legal responsibility. In terms of the bottom line and requirements of safeguarding national security, the relevant provisions of the International Covenant on Civil and Political Rights are very clear, fully guaranteeing the exercise of these rights and freedoms while stipulating the exercise of them should be within the scope as prescribed by law. Some people have wondered whether legal provisions are arbitrarily introduced. It does not work like that. Legal provisions have requirements and scope. For example, in the areas of national security, public order, public health, and even social decency, there are limits, a distinct bottom line and boundaries that cannot be crossed. Absolute rights and freedoms are impossible.
Today, our friends from the press here are wearing masks, except for the few of us. In order to prevent and control COVID-19, we acted quickly in January. One of the measures taken, which seems simple but actually is of great importance, is that everyone is required to wear a mask. However, some countries don't see it that way, and they think it limits people's freedom and rights. I just take this as an example, since everyone has personal experience in regard to epidemic prevention. Likewise, there are boundaries and requirements for national security and public order. The situation varies from country to country. Just now, Mr. Zhang Xiaoming talked about the United States. Americans have the freedom to carry guns; however, is this true in other countries of the world? During the formation of China's newly adopted Civil Code, there were opinions calling for the legal recognition of same-sex marriage. We were talking about heterosexual marriage. Some might say same-sex marriage has been legalized in a certain country, and that might be possible. However, rights and freedoms have boundaries, and the situation varies from country to country. So, in safeguarding national security in the HKSAR, there are certain limits, a bottom line and boundaries, and we must strive to achieve a balance. In safeguarding national security, human rights must be respected. To respect human rights, national security must be maintained. These two are basically consistent and complement each other.
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