Six Things You Need to Know about the National Security Legislation for Hong Kong SAR
2020/06/12
 
On May 28, the 13th National People's Congress (NPC) adopted at its Third Session the NPC Decision on Establishing and Improving the Legal System and Enforcement Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region (HKSAR). The HKSAR government and various social groups and individuals in Hong Kong have welcomed and supported the decision, and pledged to facilitate the early completion of the legislative process with maximum efforts to safeguard national security and protect Hong Kong.
 
It is a view widely shared in the global community that China's national security legislation for Hong Kong is legally sound and consistent with international common practices. It is driven by the situation on the ground and meets the aspiration of the people. Anyone who wishes Hong Kong a better future would support the NPC's decision. However, a handful of foreign politicians are going all out to make unwarranted accusations and blatantly interfere in Hong Kong-related affairs, which are purely China's internal affairs. The following are the six typical falsehoods about the legislation and the facts that you need to know.
 
Falsehood #1: It is not legitimate for China to enact national security legislation for Hong Kong or, in other words, to impose it on Hong Kong.
The truth is: The Central Government of China holds the primary and ultimate responsibility for national security, as is the case in any other country. In all countries, unitary and federal alike, the power to legislate on national security rests solely with the central government. And the NPC is the highest organ of state power in China.
 
◆Australia has two national security laws, the United Kingdom has three, Canada has five, and the United States alone has more than 20 such laws.
 
◆Article 31 of the Chinese Constitution stipulates that, "The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People's Congress in the light of the specific conditions." As the highest organ of state power, the NPC has both the power and obligation to fulfill its constitutional duty of safeguarding national security in accordance with the Constitution and the Basic Law based on the reality and needs of the HKSAR. The duty includes enacting national security legislation for the HKSAR and establishing relevant legal system and enforcement mechanisms. The recent decision of the NPC has solid legal grounds and the highest legal effect.
 
◆Legislation on national security falls within a state's legislative power. Through Article 23 of the Basic Law, the Central Government grants the HKSAR certain legislative power on safeguarding national security, which is a very special arrangement under "one country, two systems". However, it does not change the fact that national security legislation is essentially within the purview of the Central Government, nor does it prevent the Central Government from further developing a legal system and enforcement mechanisms for safeguarding national security in light of the actual situation and needs.
 
Falsehood #2: It is not necessary for China to take the action at the moment.
The truth is: The current situation makes it imperative to establish and improve, at the state level, the legal system and enforcement mechanisms for safeguarding national security in the HKSAR. The decision is fundamental to the enduring success of "one country, two systems" and is of the greatest urgency.
 
◆Article 23 of the Basic Law stipulates that the HKSAR shall enact laws on its own to safeguard national security. Nearly 23 years after Hong Kong's return to China, however, the relevant legislative process is still not materialized due to the sabotage and obstruction by anti-China, destabilizing elements in Hong Kong as well as hostile forces from the outside. Given this situation, it has become quite difficult, if not impossible, for the HKSAR to enact the relevant laws on its own.
 
◆Over the past weeks and months, activities that endanger national security have intensified in the HKSAR, posing notable risks to the long-term prosperity and stability of the Hong Kong and to the security of the country. In particular, since the turbulence over the amendment bill in 2019, the "Hong Kong independence" and radical separatist forces have become further emboldened and escalated their violent terrorist activities. Some separatists even made a public appeal for foreign sanctions against China and invited the US military to Hong Kong. External forces and "Taiwan independence" forces have blatantly ramped up intervention in Hong Kong affairs, which seriously challenges the "one country, two systems" principle, gravely undermines Hong Kong's law and order, and poses real threats to the country's sovereignty, security and development interests. Forceful measures are therefore required to prevent, forestall and punish these acts.
 
Falsehood #3: The legislation will undermine "one country, two systems".
The truth is: On the contrary, the legislation will ensure the successful implementation of "one country, two systems". Article 1 of the NPC's decision states clearly that the country will unswervingly, fully and faithfully implement the principles of "one country, two systems", "the people of Hong Kong administering Hong Kong" and a high degree of autonomy.
 
◆"One country" is the precondition and basis of "two systems", while "two systems" is subordinate to and derived from "one country". "One country" is the foundation. Should the principle of "one country" be undermined, "two systems" would be impossible to practice. One important reason for the turbulence in Hong Kong is that the anti-China, destabilizing elements in Hong Kong and external forces have shown no regard for "one country" as the foundation and challenged the bottom line of the "one country, two systems" principle.
 
◆The legislation for Hong Kong will not change the "one country, two systems" principle. It will not change the capitalist system or the high degree of autonomy practiced in Hong Kong. It will not change the legal system in the HKSAR. Nor will it affect the HKSAR's executive, legislative and independent judicial power, including that of final adjudication.
 
Falsehood #4: The legislation will be a violation of China's international obligations under the Sino-British Joint Declaration.
The truth is: The legal basis for the Chinese government to govern Hong Kong is the Chinese Constitution and the Basic Law of the HKSAR. The Sino-British Joint Declaration is not relevant in this regard.
 
As China resumed the exercise of sovereignty over Hong Kong in 1997, all provisions concerning the UK under the Joint Declaration had been fulfilled. The basic policies regarding Hong Kong stated by China in the Joint Declaration are not commitments to the UK, but China's declaration of its policies, which have since been fully embodied in the Basic Law enacted by the NPC. These policies have not changed; they will continue to be upheld by China.
 
◆The Constitution, as the fundamental law of China, has supreme legal status and authority. It forms the legal basis for the establishment of special administrative regions and the formulation of the Basic Law of the HKSAR. It is clearly stipulated in the Preamble of the Basic Law that in accordance with China's Constitution, the NPC enacts Hong Kong's Basic Law, "prescribing the systems to be practiced in the Hong Kong SAR, in order to ensure the implementation of the basic policies of the People's Republic of China regarding Hong Kong".
 
◆The Sino-British Joint Declaration is an important document concerning China's recovery of Hong Kong and relevant arrangements during the transitional period. It consists of eight paragraphs and three annexes. Paragraph 1 is about China resuming the exercise of sovereignty over Hong Kong. Paragraph 2 is about the UK restoring Hong Kong to China. Both paragraphs were fulfilled with Hong Kong's return. Paragraph 3 and Annex I are declaration and elaboration of China's basic policies regarding Hong Kong. Paragraphs 4 to 6 and Annex II and III stipulate arrangements during the transitional period. Paragraphs 7 and 8 are about the Joint Declaration's implementation and entry into force. With the return of Hong Kong and the completion of follow-up matters, all UK-related provisions have been fulfilled.
 
◆The Joint Declaration does not assign the UK any responsibility over Hong Kong nor give it any right to intervene in Hong Kong affairs after the handover. The UK has no sovereignty, jurisdiction or "right of supervision" over Hong Kong after its return. The Joint Declaration is a bilateral instrument between China and the UK; it does not involve any other country or has anything to do with a third country. Sovereign equality and non-interference are enshrined in international law and are basic norms of international relations. Other countries and organizations have no right to meddle in Hong Kong affairs on the grounds of the Joint Declaration.
 
Falsehood #5: The legislation will affect the rights and freedoms of Hong Kong residents.
The truth is: The legislation will not affect the rights and freedoms Hong Kong residents enjoy under the law; it will enable them to enjoy their lawful rights and freedoms in a safe environment.
 
◆Fundamentally speaking, safeguarding national security and protecting human rights do not conflict with each other. The NPC's decision targets only acts of secession, subverting state power and organizing and carrying out terrorist activities that seriously jeopardize national security as well as interference in the HKSAR affairs by external forces. For the majority of law-abiding residents and foreigners in Hong Kong who love the city, there is no need to worry that they might be unfavorably impacted.
 
◆All work and law enforcement efforts to safeguard national security will be conducted strictly in accordance with legal provisions, mandates and procedures, without prejudice to the lawful rights and interests of Hong Kong residents, legal persons and other organizations.
Falsehood #6: The legislation will erode Hong Kong's business environment and undermine its position as a global financial center.
The truth is: The legislation will improve Hong Kong's legal system and bring more stability, stronger rule of law and a better business environment to Hong Kong. It will bolster Hong Kong's position as a global financial, trading and shipping center.
 
◆Only when national security is ensured can the community in Hong Kong enjoy law and order and Hong Kong's prosperity and stability be assured. If Hong Kong is fraught with national security loopholes and plagued by social unrest, investor confidence will be eroded. The turbulence over the amendment bill since last year has cost Hong Kong the title of the world's freest economy, a title it had held for 25 years. Its GDP contracted for the first time in a decade and unemployment hit a record high in nearly 10 years.
 
◆The legislation will not affect the legitimate interests of foreign investors. It will afford better protection to their law-based operations and commercial ties, alleviate the grave concern in the local and foreign business communities about debilitating violence, and create a more reliable and stable law-based business environment for foreign investors.
 
◆In 2009, the Macao Special Administrative Region passed a national security law under Article 23 of the Basic Law of the Macao SAR. Between 2009 and 2019, Macao's GDP grew by 153 percent, the number of inbound tourists increased by 81 percent, and the overall unemployment rate hit a record low in a decade.