The National Security Law for Hong Kong (NSL) has been widely criticized but not widely understood by the Western media and politicians. Not surprisingly, the recent interpretation of the NSL by the Standing Committee of the National People’s Congress (NPCSC) received a hostile reception from US Consul General to Hong Kong and Macao Gregory May. Showing entrenched negative feelings about the NSL, he said the interpretation could further undermine the independence of Hong Kong’s judiciary system by expanding the executive branch’s power to make decisions affecting cases without judicial oversight. We object to his unsubstantiated allegation.
In order to dispel the miasma of suspicion hanging over May’s comments, the Office of the Commissioner of the Ministry of Foreign Affairs of the People’s Republic of China in the Hong Kong Special Administrative Region condemned his remarks. Fully aware of the hidden agenda beneath May’s speech, the office said the way May had defamed the city’s rule of law and freedom would only unveil his ill intention of disrupting the HKSAR and containing China. The HKSAR government also condemned May for maliciously slandering the NSL and the interpretation of the NPCSC.
There is no disguising the fact that the NSL has been the bete noire of Washington and one of the major sources of tension between China and the US. In response to the promulgation of the NSL, then-US president Donald Trump signed a law to impose sanctions on Chinese-mainland and Hong Kong officials whom he accused of eroding Hong Kong’s autonomy; he also issued an executive order ending the city’s preferential trading status.
The Biden administration has remained tough and adopted a hard-line attitude toward China. Another move to spark a further downward spiral in Sino-American relations was the provocative decision by the Biden administration to extend for 24 months the deferred enforced departure, or DED, status for Hong Kong people temporarily staying in the US, citing “compelling foreign policy reasons”. There is no doubt that Hong Kong is ill-equipped to deal with the above challenges and national security threats.
From the perspective of China, deteriorating Sino-American relations and the need to maintain prosperity and stability in Hong Kong have reinforced the belief that national security is too important and complicated to be handled solely by Hong Kong. To ensure that the HKSAR can navigate the dangerous shoals that lie ahead, Xia Baolong, director of the State Council’s Hong Kong and Macao Affairs Office, recently highlighted the importance of implementing a “dual implementation mechanism” in safeguarding national security in the HKSAR, which involves both the central authorities and the HKSAR government. Xia noted that the central government bears the ultimate responsibility for national security matters in the city, wielding full legislative, law enforcement and judicial powers.
The “dual implementation mechanism” is perfectly legitimate. First, the central government is constitutionally obligated to safeguard national security. According to Tian Feilong, an associate professor at Beijing’s Beihang University, it is a universally accepted principle around the world that central government authorities, even in federal states, have the constitutional authority and constitutional responsibility to enact domestic security legislation (Tian Feilong, Safeguarding National Security is the Key to Consolidating the Constitutional Order of the HKSAR, in Hong Kong and Macao Journal, 2 (2020), pp 34-46).
Second, national security falls under the defense umbrella, which is the central government’s responsibility as prescribed by Article 14(1) of the Basic Law (Han Zhu, The Hong Kong National Security Law, in Hualing Fu & Michael Hor (eds), The National Security Law of Hong Kong: Restoration and Transformation (HK:HKU Press, 2022), p 53).
Third, Chief Justice Andrew Cheung Kui-nung has reminded us that making laws is the responsibility of the Legislative Council or the nation’s top legislature in the case of national security laws applicable to Hong Kong. In an authoritative passage in the judgment of the Privy Council in Zamora (1916) 2 AC 77, Lord Parker said: “Those who are responsible for the national security must be the sole judge of what the national security requires.”
Mention should also be made of the chaotic and threatening situation in Hong Kong in the second half of 2019. As Deng Zhonghua, president of the Chinese Association of Hong Kong and Macao Studies, pointed out, the NSL was introduced and enacted against an exceptional background. The deficiencies in the legal system and enforcement mechanisms had resulted in a prolonged state of security vacuum for safeguarding national security. Confronted with unprecedented national security threats, Hong Kong was no longer in a position to complete by itself the construction of its legal system and enforcement mechanisms to safeguard national security (National Security Law Legal Forum: Security Brings Prosperity, July 5, 2021 (HK: DOJ, 2021), p 226-227). The relentless interference in Hong Kong affairs by external forces has vindicated the “dual implementation mechanism”.
Finally, it does not need emphasizing that Article 23 of the Basic Law is a delegated clause through which the central government authorizes the HKSAR to enact a piece of legislation safeguarding national security. This article does not change the fundamental principle that national security and the power of enactment is a matter that falls within the purview of the central authorities (Teresa Cheng, National Security Law — A New Horizon for the Successful Implementation of “One Country, Two Systems”, p 7). Since the HKSAR had failed to implement Article 23, the central government had to enact the NSL. If the offenses endanger the fundamental interests of the State and its people, and if Hong Kong has difficulties in dealing with them, the central authorities bear the ultimate responsibility in respect of safeguarding national security — Article 55 of the NSL.
With regard to the responsibility of Hong Kong, Xia pointed out that the HKSAR must accurately understand the legislative intent, or purpose, of the NSL, to ensure that it is fully and accurately implemented without compromise. The “one country, two systems” principle must be fully and accurately implemented in order to provide solid protection for national security and the prosperity and stability of Hong Kong. Besides, Xia added that the HKSAR government should take the initiative to amend and improve local laws to achieve organic unity between local laws and the NSL.
The HKSAR government has realized the pressing need to promote national security education in the city, and rightly so. In 2021, the Education Bureau promulgated the Curriculum Framework of National Security Education in Hong Kong and 15 related national security subject frameworks. In October 2022, the National Security Education Center of the International Probono Legal Services Association also launched a national security education instructor training program to help promote national security education in the city.
Junius Ho is a Legislative Council member and a solicitor.
Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, and chairman of the Chinese Dream Think Tank.
The views do not necessarily reflect those of China Daily.