SCIO briefing on the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region
0 Comment(s)
Print
E-mail China.org.cn, July 4, 2020
Sing Tao Daily:
Hong Kong society pays much attention to the issues of law enforcement and jurisdiction over criminal cases. Does the Office for Safeguarding National Security of the Central People's Government in the HKSAR belong to the entities set up in the HKSAR by departments of the Central Government, covered in Article 22 of the Basic Law of the HKSAR of the People's Republic of China? According to Article 60 of the Law of the People's Republic of China on Safeguarding National Security in the HKSAR, the acts performed in the course of fulfilling the duty by the office are not to be subject to the jurisdiction of the HKSAR. So, how should we understand this? With the Law of the People's Republic of China on Safeguarding National Security in the HKSAR coming into force, how will the office perform its duties? Will criminal suspects be sent to Chinese mainland for trial? Will they be tried in accordance with the Law of the People's Republic of China on Safeguarding National Security in the HKSAR or the law prevailing in the Chinese mainland? Thank you.
Zhang Xiaoming:
The central authorities have the power and the responsibility to take all necessary measures to safeguard national security. This is a general principle and the basic starting point in considering specific issues. According to the Law of the People's Republic of China on Safeguarding National Security in the HKSAR, the Central People's Government establishes in the HKSAR an office for safeguarding national security. The name of the office is specified in the Law as the Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region. This office is established on the basis of the decision taken by the National People's Congress last month, and the just adopted The Law of the People's Republic of China on Safeguarding National Security in the HKSAR. Its name also shows it is an organ of the Central People's Government. Thus, it's different from "offices set up in the Hong Kong Special Administrative Region by departments of the central government, or by provinces, autonomous regions, or municipalities" as written in Article 22 of the Basic Law of the HKSAR of the People's Republic of China. They are not the same thing.
According to Article 60 of the Law of the People's Republic of China on Safeguarding National Security in the HKSAR, actions performed in the course of fulfilling the duties of the Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region and its staff in accordance with this law, are not subject to the jurisdiction of the HKSAR. This is very clear, and it means the executive, legislative and judicial organs of the HKSAR cannot intervene. In other words, they have no means to seek to govern the acts performed by the office and its staff, deemed necessary by the office in performing its duties in accordance with the law. Because the power exercised by the office extends beyond the autonomy of the HKSAR, and many of the cases the office will investigate involve state secrets, it's entirely reasonable that the exercise of its legal duties should not be subject to the jurisdiction of the HKSAR. This provision also refers to the relevant provisions of the Law of People's Republic of China on Garrisoning the Hong Kong Special Administrative Region as well as certain international practices. As we know, there were three organs dispatched by the Central People's Government to the HKSAR. These are the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region, the Office of the Commissioner of the Ministry of Foreign Affairs in the Hong Kong Special Administrative Region, and the Hong Kong Garrison of the Chinese People's Liberation Army. The Law of People's Republic of China on Garrisoning the Hong Kong Special Administrative Region has such provisions. Since the establishment of the Office for Safeguarding National Security of the Central People's Government in the HKSAR, the number of the organs dispatched by the Central People's Government to HKSAR has, therefore, become four. In the United States, there exist federal and local state judicial systems. In regard to some issues, the states have no rights to assume overall governance. However, this does not mean that no one is responsible to the Office for Safeguarding National Security of the Central People's Government in the HKSAR. The Law of the People's Republic of China on Safeguarding National Security in the HKSAR provides strict regulations on the procedures and supervisory mechanisms for the office in performing its duties.
You have asked several questions on how the Office for Safeguarding National Security of the Central People's Government in the HKSAR will perform its duties. According to Article 55 of the Law of the People's Republic of China on Safeguarding National Security in the HKSAR, the Office for Safeguarding National Security of the Central People's Government in the HKSAR will exercise jurisdiction in three specific situations. The law enforcement work of the office mainly focuses on initiating investigation into specific cases, taking necessary investigatory measures, and arresting relevant criminal suspects after submitting the case to the designated people's procuratorate for approval. As for the following steps, including "Jian Kong" in Hong Kong law or "Qi Su" in law on the mainland, as well as trials, the law clearly stipulates that the Supreme People's Procuratorate designates a prosecuting body to undertake this role, and the Supreme People's Court designates a court to adjudicate on it. The reason why the law has such provisions is that Hong Kong has a different legal system from that of Chinese mainland. The relevant authorities of the central government and the relevant authorities of the HKSAR form two different law enforcement and judicial bodies that should, and indeed can only enforce their own laws. It is impossible to ask Hong Kong police, prosecutors or judges to enforce the law of Chinese mainland, nor ask police, prosecutors or judges of Chinese mainland to enforce the law of Hong Kong. Due to lack of understanding, such activities will lead to conflicts and confusion in terms of jurisdiction and application of the law. Therefore, in accordance with the design and provisions of the Law of the People's Republic of China on Safeguarding National Security in the HKSAR, the law enforcement and judicial teams of the central government and the HKSAR authority will have separate but complete jurisdictional processes consisting of case filing and investigation, examination and prosecution, trial and punishment. The two teams will be responsible for themselves, featuring clear division of labor and jurisdiction. Meanwhile, they will support, coordinate with and complement each other, establishing a relationship of support, coordination and complementarity, and jointly constituting a system and mechanism for safeguarding national security in the HKSAR. That's my answer.
Go to Forum >>0 Comment(s)