We have interviewed Mr. Eric Shum, a barrister-at-law, to understand in depth the legal perspective on the Hong Kong National Security Law that was passed on May 28, 2020.
Question 1: What are the contents of the HK National Security bill being passed last week?
In the People’s Republic of China under its constitution the highest law enacting body is the National People’s Congress (“NPC”) which holds meetings annually with representatives of all provinces gathering in Beijing.
On 28 May 2020 at the third session of the thirteenth National People’s Congress a decision “to establish and improve a legal framework and enforcement mechanism for safeguarding national security in the Hong Kong Special Administration Region” (“Decision”) was passed authorizing the National People’s Congress Standing Committee (“NPCSC”) to promulgate a national security law to be applied in Hong Kong. The contents of the intended law will be discussed and decided at the NPCSC meetings in the forthcoming weeks.
The Decision contains seven articles: Article 1 restates the importance of one country two systems and the rule of law, and the state will complete legal and enforcement mechanisms to preserve national security. Article 2 states that the state will stop and punish overseas forces used in Hong Kong for separatist, subversive or destructive activities. Article 3 states that maintaining China’s sovereignty is Hong Kong’s constitutional responsibilities and requires Hong Kong to enact national security legislation as soon as possible and its executive, legislative and judiciary to stop and punish conduct endangering national security. Article 4 requires Hong Kong to establish institutions to protect national security. Article 5 requires regular reports from the Chief Executive of Hong Kong on national security. Article 6 authorizes the NPCSC to draft a national security law and then include it in Annex III of the Basic Law of Hong Kong. Article 7 provides that the Decision as a whole shall take effect on promulgation.
Question 2: What will be its impact on HK people, especially with regard to HK’s autonomy and freedom, and people’s human rights? Please give us concrete example about how people’s freedom and rights be threatened.
Since the Decision only states the areas and framework of the intended national security law to be drafted by the NPCSC and its procedures of introducing into Hong Kong, in the absence of the actual provisions of the intended law one cannot comment on whether and how the new law will and to what extent it will affect Hong Kong’s autonomy and freedoms and human rights of Hong Kong people.
However, the way the Decision was passed and its implication raises at least the following grave concerns of Hong Kong people:
There was no consultation at all in Hong Kong before the Decision was introduced and passed. The so-called representatives of Hong Kong in the NPC are NOT elected by Hong Kong people and do not legitimately represent Hong Kong people. It was only when this year session of the NPC began its meeting that the Decision was publicized. The question is why the urgency to pass the Decision and the NPCSC drafting and passing the intended law without any meaningful consultation with the people of Hong Kong and so urgently.
Under the one country two systems policy Hong Kong is guaranteed high autonomy under the Basic Law which is enacted by the NPC itself and the mini constitution of Hong Kong. Under Article 23 of the Basic Law Hong Kong SHALL enact laws ON ITS OWN to prohibit any act of treason, secession, sedition, subversion against the Central Government, or theft of secrets, to prohibit foreign organizations or bodies from conducting political activities in Hong Kong , and to prohibit political organizations or bodies in the Hong Kong from establishing ties with foreign political organizations of bodies. It is apparent that the intended new law to a great extent at least overlaps with what is stated in Article 23 of the Basic Law. Hence, the intended law should be enacted by Hong Kong legislature and not by the NPCSC. This process of NPCSC enacting for Hong Kong is in contravention of Article 23 and a breach of the policy and promise of high autonomy of Hong Kong.
Furthermore, the above argument against the intended new law is strengthened by Article 18 (2) of the Basic Law which provides that “ National laws shall not be applied in Hong Kong except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by Hong Kong”. Article 18(4) provides that “Laws listed in Annex III to this Law shall be CONFINED to those relating to defense and foreign affairs as well as other matters outside of the limits of autonomy of Hong Kong as specified by this Law”. It is therefore made clear in the Basic Law that the intended new law should be enacted by Hong Kong legislature and does not fall within the scope of the national law relating to defense and foreign affairs which could be enacted by the NPC and introduced into Hong Kong through Annex III under Article 18. The above is further reinforced by Article 18(4) in which it states that by reason of turmoil endangering national security the NPCSC may declare Hong Kong to be in a state of emergency and order that national laws to apply in Hong Kong. That specific provision makes it clear that without a declaration of state of emergency the making of laws relating to national security remains to be within Hong Kong autonomy as provided in Article 23.
As could be seen from the areas referred to in Article 2 of the Decision the scope of the intended law to be enacted by the NPCSC is very wide. Hong Kong is a free society so far with lots of communications in terms of political, commercial, religious, cultural and social exchanges with other countries and cities all over the world. The concept of national security in China is very wide and mere expressions of ideas on matters remotely or even not related to politics can fall within the mainland China’s criminal law and are offences. In Hong Kong as the law now stands freedom of expression, public demonstration and meetings, freedom of the press and human rights protection are all to be protected according to international standards and the United Nations ICCPR treaty applies to Hong Kong. With the introduction of the intended law to be enacted by NPCSC it is doubtful if the law itself would afford the same protection to Hong Kong people as they enjoy now and more concern is about the actual implementation in real of the intended new law in Hong Kong since there is grave concern that even good law may be enforced in illegitimately ways in practice.
Question 3: Do you think it will also have an impact on the Church in HK?
The freedom of religion is a protected right in Hong Kong at the moment. Not different to any other human rights religious freedom can be easily eroded when the intended new law is enacted, not by Hong Kong and without meaningful consultation with Hong Kong people, and applied in Hong Kong. In the national constitution of China religious freedom is on paper also protected. However, from experience and in practice the Government of China has demonstrably laid her hands on religious matters in the past in the Mainland. The sort of guarantee on paper has shown not to be respected from what one can see and there is a legitimate concern that with the intended new law religious freedoms will gradually be eroded on the pretext of national security.
Question 4: When this bill will be implemented?
The NPCSC will hold its meetings in June and July and in light of the way the intended new law is introduced by the NPC authorizing the NPCSC to draft it, it will not be surprised that the new law will be passed and promulgated in early August 2020.
Dated 6th June 2020.