UPDATE (May 28, 2020): The NPC adopted this Decision on Thursday with 2878 votes in favor, one against, and six abstentions. Its explanation is available here, and an unofficial English translation is available here. We have updated this explainer in accordance with the Decision’s final text. There are two main changes to the draft: (1) the preamble is longer; and (2) and the scope of authorization under article 6 has been extended to “activities” [活动]—in addition to “conduct” [行为]—that endanger national security. We do not believe the latter change is significant.
Readers would probably know by now that the ongoing NPC session’s agenda includes a new draft Decision on Establishing and Improving the Legal Systems and Implementation Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region [关于建立健全香港特别行政区维护国家安全的法律制度和执行机制的决定]. This new bill was reviewed once by the NPC Standing Committee (NPCSC) on May 18 and had been kept a secret until Thursday night. We have studied the draft Decision and its accompanying explanation, and now offer the following explainer in Q&A format, focusing on the Decision’s contents and the legal questions it raises.
1. What is Article 23 and what are the key events leading up to this Decision?
Article 23 refers to the article in the Hong Kong Basic Law—the city’s mini-constitution—that requires the Hong Kong government to proscribe certain acts deemed detrimental to national security. Article 23 reads in full:
The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.
香港特别行政区应自行立法禁止任何叛国、分裂国家、煽动叛乱、颠覆中央人民政府及窃取国家机密的行为，禁止外国的政治性组织或团体在香港特别行政区进行政治活动，禁止香港特别行政区的政治性组织或团体与外国的政治性组织或团体建立联系。
To fulfill its Article 23 duty, the Hong Kong government introduced a national security bill in 2003. But the bill was heavily criticized for sweeping too broadly and unduly encroaching on civil liberties. Following a massive demonstration against the bill on July 1, 2003, the government withdrew it and has never restarted the process.
Fast forward to 2019. In February, the Hong Kong government proposed the infamous extradition bill, which then sparked months of protests and demonstrations. While the Hong Kong government eventually withdrew the bill under pressure, the central government thought the protestors have gone too far and posed grave national security risks that existing Hong Kong legal institutions had failed to adequately deal with. With Article 23 continuing to lie dormant and with Hong Kong’s national security law enforcement capabilities lacking, national security and Hong Kong’s long-term prosperity are under threat, says the Decision’s explanation. The central government thus decided to take matters into its own hands.
2. What are the main contents of the Decision?
The Decision includes a preamble followed by seven operative articles.
The preamble asserts that the Decision’s purpose is to “safeguard national sovereignty, security, and development interests, uphold and improve the ‘one country, two systems’ system, preserve Hong Kong’s long-term prosperity and stability, and safeguard the lawful rights and interests of Hong Kong residents.” It explicitly references the “Hong Kong independence” movement and “flagrant” foreign interferences as among the threats to national security.
The preamble invokes the NPC’s authority under articles 31 and 62 of the P.R.C. Constitution. Article 31 empower the NPC to prescribe by law the systems to be instituted in a special administrative region like Hong Kong. And article 62 allows the NPC to “oversee the implementation of the Constitution” and to exercise any unenumerated functions and powers that it thought it should exercise.
Article 1 states China’s current policy towards Hong Kong, including the policy to “unflinchingly, fully, and accurately implement the principles of ‘one country, two systems,” ‘Hong Kong people governing Hong Kong,’ and a high degree of autonomy.”
Article 2 reiterates that China “firmly opposes” any interference by foreign forces in Hong Kong’s affairs and vows to take actions to prevent, stop, and punish foreign forces’ use of Hong Kong “to carry out separatist, subversive, infiltrative, or destructive activities.”
Article 3 declares that Hong Kong has the “constitutional duty” to preserve “the nation’s sovereignty, unity, and territorial integrity.” It requires Hong Kong to enact an Article 23 legislation “as soon as possible.” The new national security law to be enacted by the NPCSC (see article 6 below) will not absolve Hong Kong of this obligation, according to the explanation.
Article 4 requires Hong Kong to strengthen national security law enforcement capabilities. It also authorizes “organs of the Central People’s Government relevant for the protection of national security,” which presumably would include at least the Ministry of State Security, to establish branches in Hong Kong and carry out activities. (A Hong Kong member of China’s top advisory body told the Global Times that these branches would have not only intelligence-gathering powers, but also law enforcement authority. Take this report with a grain of salt, however.)
Article 5 requires Hong Kong’s Chief Executive to deliver periodic reports to the central government on the city government’s efforts to safeguard national security, to carry out national security education, and to prohibit conduct and activities endangering national security.
Article 6 is the core operative provision and reads:
The [NPCSC] is authorized to draft laws on establishing and improving the legal systems and enforcement mechanisms for safeguarding national security in [Hong Kong], to effectively prevent, stop, and punish any conduct or activity that seriously endangers national security, such as separatism [or secession], subversion of state power, or organizing and carrying out terrorist activities, as well as activities by foreign and overseas forces that interfere in the affairs of [Hong Kong]. The [NPCSC] is to list the above-mentioned relevant laws in Annex III of the [Hong Kong Basic Law], which will be implemented locally by [Hong Kong] by way of promulgation.
六、授权全国人民代表大会常务委员会就建立健全香港特别行政区维护国家安全的法律制度和执行机制制定相关法律，切实防范、制止和惩治任何分裂国家、颠覆国家政权、组织实施恐怖活动等严重危害国家安全的行为和活动以及外国和境外势力干预香港特别行政区事务的活动。全国人民代表大会常务委员会决定将上述相关法律列入《中华人民共和国香港特别行政区基本法》附件三，由香港特别行政区在当地公布实施。
This article has three key provisions. First, it authorizes the NPCSC to draft and adopt a national security law for Hong Kong. Second, the NPCSC is directed to list that law in Annex III of the Basic Law so that it can be enforced in Hong Kong. National laws otherwise “shall not be applied in” Hong Kong (Basic Law art. 18, para. 2). And third, this article provides that the new law, once listed in Annex III, will be implemented “by way of promulgation”—and not by local legislation. In other words, it will be enforced as written, so that the Hong Kong legislature will be bypassed.
Three additional observations are in order. First, while much attention has been justifiably paid to the new law’s potential criminal provisions, the broad authorization language in this article suggests that the new law might not be an exclusively criminal statute. There is also nothing in this article that limits the NPCSC to enacting only a single law. Second, the four types of prohibited activities listed in this article are not a subset of those listed in Article 23. Only separatism (also translated as secession) and subversion are found in both. Article 23, unlike this article, does not mention terrorist activities. And Article 23 does not require the prohibition of all overseas interferences in Hong Kong affairs, but only the political activities of foreign political groups. As a result, the NPCSC probably will not legislate on the remaining four types of conduct under Article 23: treason, sedition, theft of state secrets, and Hong Kong political groups’ establishment of ties with foreign political groups. Third, the explanation says that the NPCSC will act “as soon as possible” after the Decision is approved, likely well before Hong Kong enacts its own Article 23 legislation—a duty that, again, will not be supplanted by the NPCSC’s enactment.
Article 7 provides that the Decision will become effective upon promulgation on May 28, 2020.
3. What would the subsequent process in the NPCSC look like?
The NPCSC will soon begin drafting the new national security law, if it has not started already. (According to that same Global Times report, the draft is almost “70% to 80%” complete.) The NPCSC Legislative Affairs Commission (a professional support body under the legislature) will likely lead the drafting process, in consultation with the NPCSC Hong Kong Basic Law Committee and the Hong Kong government.
The NPCSC meets every two months, and its next regularly scheduled session is in late June. Some have suggested the possibility of a special session before then, but we do not see the necessity of convening one, when the NPCSC is scheduled to meet in just a month.
Under the mainland’s Legislation Law [立法法], a bill is ordinarily approved only after three separate reviews—or at three different NPCSC sessions (art. 29). A bill may be adopted after only two reviews when the interested parties have reached a “preponderant consensus” on it (art. 30). The Legislation Law also allows just a single review for bills that “adjust a single matter” or “partially amend” a statute (id.). The NPCSC is likely to choose the second route, in our view, because the default three-review process would drag the process on for too long, whereas the single-review process would not apply and would be bad optics in any case. Thus, barring any special session and assuming the NPCSC follows the Legislation Law, the NPCSC could approve the new law in late August at the earliest. (It would ordinarily take at least six months to enact a new law, but there are reasons to believe that the normal legislative timetable would not apply to this one.)
If the new law is not rushed through the NPCSC at a single session, it could be released for public comments, although the Council of Chairpersons—a key decision-making body within the NPCSC that is headed by the Communist Party’s third-ranking official—can and may decide otherwise.
After the new law is adopted, the NPCSC still needs to separately list it in Annex III of the Basic Law. It can do so either at the same session or at a later one; there is precedent for both. For this new national security law, we think the former is more likely. The Basic Law requires that the NPCSC consult the Basic Law Committee and the Hong Kong government before adding a new national law in Annex III (art. 18, para. 3). This new law’s listing in Annex III seems a fait accompli, however.
4. What are the potential legal objections to the NPCSC’s enacting a national security law for Hong Kong?
Article 23 alone may well bar the NPCSC from stepping in. It requires the Hong Kong government to enact the required national security legislation “on this own.” Professor Fu Hualing and others have argued:
Clearly, how Article 23 is to be implemented is a matter belonging to the exclusive jurisdiction of Hong Kong. While the NPCSC may interpret whether the HKSAR Government has passed laws to implement Article 23, it would be a violation of Article 23 if the NPCSC actually gave an interpretation as to how the laws implementing the Article should be worded.
It follows then that it would be a clearer violation of Article 23 if the NPCSC actually writes an implementing law itself. Some mainland scholars and the central government have taken the view, however, that Article 23 only imposes an obligation on Hong Kong to enact a national security law, and does not grant it the exclusive authority to do so. Instead, Article 23 should be understood as a special authorization: national security is always within the “national legislative power” [国家立法权], but Article 23 shares that power with Hong Kong because the central government once had trust in the city. Since Hong Kong has failed to fulfill its duty, the central government is justified to intervene.
Even if Article 23 is not an insurmountable hurdle, article 18 of the Basic Law—providing for the Annex III listing mechanism—may still bar the NPCSC from adding its tailor-made national security law for Hong Kong in Annex III. That is because article 18 limits the national laws listed in Annex III “to those relating to defence [国防] and foreign affairs [外交] as well as other matters outside the limits of [Hong Kong’s] autonomy” under the Basic Law. No one seems to argue that the contemplated national security law would belong to the “foreign affairs” category. Similarly, it would “stretch[] the meaning of ‘defence’ beyond acceptable bounds” to interpret it to include internal security matters.
Thus, the new law would have to be “outside the limits of [Hong Kong’s] autonomy” if it were to be listed in Annex III without violating article 18. But the very fact that Article 23 requires Hong Kong to legislate on national security indicates that national security is within its autonomy. On this point, the central government would likely also contend that Article 23 does not give Hong Kong exclusive authority over the city’s national security matters, but merely allows it to exercise concurrent jurisdiction.
4. What practical obstacles would the NPCSC face when drafting the national security law?
As far as we could tell, the main practical hurdle stems from the differences between Hong Kong’s and the mainland’s legal systems, including the ways in which legislation is written. Likely for this reason, the Hong Kong government has so far chosen to implement—via local legislation to allow for adaptation—the three Annex III laws authorizing criminal penalties: the National Flag Law [国旗法], the National Emblem Law [国徽法], and the National Anthem Law [国歌法].
As an illustration, compare the penalty provision in the mainland’s National Anthem Law and the corresponding provision in a pending Hong Kong bill that would implement the Law.
| National Anthem Law | Pending National Anthem Bill |
|---|---|
| Article 15: Whoever deliberately alters the lyrics or the score of the national anthem, or performs or sings the national anthem in a deliberately distorted or derogatory manner, or insults the national anthem in any other manner, in a public venue, is to be warned or detained for up to 15 days by the public security organs; criminal responsibility is pursued where a crime is constituted. | 7. Offence of insulting behaviour (1) A person commits an offence if, with intent to insult the national anthem, the person publicly and intentionally— (a) alters the lyrics or score of the national anthem; or (b) plays and sings the national anthem in a distorted or disrespectful way. (2) A person commits an offence if the person publicly and intentionally insults the national anthem in any way. (3) A person commits an offence if, with intent to insult the national anthem, the person intentionally publishes— (a) altered lyrics or an altered score of the national anthem; or (b) the national anthem played and sung in a distorted or disrespectful way. (4) A person commits an offence if, with intent to insult the national anthem, the person intentionally publishes the insulting in any way of the national anthem. (5) Except as provided under subsection (3) or (4), a person does not commit an offence under this section by publishing— (a) altered lyrics or an altered score of the national anthem; (b) the national anthem played and sung in a distorted or disrespectful way; or (c) the insulting in any way of the national anthem. (6) A person who commits an offence under this section is liable on conviction to a fine at level 5 and to imprisonment for 3 years. (7) Proceedings may only be commenced for an offence under this section before whichever is the earlier of the following— (a) the end of the period of 1 year after the date on which the offence is discovered by, or comes to the notice of, the Commissioner of Police; (b) the end of the period of 2 years after the date on which the offence is committed. (8) In this section— insult (侮辱), in relation to the national anthem, means to undermine the dignity of the national anthem as a symbol and sign of the People’s Republic of China; publish (發布) includes— (a) to communicate to the public in any form, including speaking, writing, printing, displaying notices, broadcasting, screening and playing tapes or other recorded material; and (b) to distribute, disseminate or make available to the public. |
6. What other legal issues has the Decision raised?
Because the Decision would authorize the NPCSC to pass a national security law for Hong Kong without absolving the latter of its own responsibility to implement Article 23, there could then be both national law and local law in enforce in Hong Kong that address the same issue, but conflict with each other. (The new national law could also conflict with other Hong Kong law, in particular the Hong Kong Bill of Rights Ordinance [香港人權法案條例].) The Decision does not say what happens in such a situation, nor does the Basic Law resolve the matter. Under article 17, all Hong Kong laws must be filed with the NPCSC. If the latter finds a law inconsistent with certain Basic Law provisions, it can send the law back, thereby invalidating it. But this article does not allow the NPCSC to send back a Hong Kong law on the ground that it violates the NPCSC’s own enactments. Conflicts between national law and Hong Kong law perhaps were not expected to occur because they would operate in their own separate spheres (and territories, literally), as provided for in article 18 of the Basic Law.
Allowing the NPCSC to add a national law in Annex III for direct enforcement in Hong Kong also raises the question whether that law must conform to the Basic Law itself—especially the latter’s provisions guaranteeing certain fundamental rights and liberties. Hong Kong courts have yet to rule on this issue. In HKSAR v. Ng Kung Siu, [1999] HKCFA 10, the Court of Final Appeal upheld the National Flag and Emblem Ordinance—the local legislation implementing the National Flag Law and the Nation Emblem Law—against a free speech challenge under the Basic Law. The Court thus had no occasion to decide which would control when an Annex III national law (not just its local implementing legislation) conflicts with the Basic Law.
Professor Huang Mingtao has argued in favor of the Basic Law’s supremacy over Annex III national laws. He cites the Basic Law’s article 11, paragraph 1, which provides that “the systems and policies practised in [Hong Kong] shall be based on the provisions of this [Basic] Law.” This “self-sufficiency provision” [自足性条款], as he dubs it, grants the Basic Law a “monopoly” over prescribing Hong Kong’s “systems and policies.” Annex III national laws should thus be interpreted to avoid conflict with the Basic Law, and when this is not possible, courts should refuse to enforce them to the extent of the conflict.
But at the end of the day, nothing would prevent the NPCSC from simply declaring its statute consistent with the Basic Law. After all, it has the “general and free-standing power” to interpret the Basic Law under the Law’s article 158 and article 67, item 4 of the P.R.C. Constitution (Lau Kong Yung v. Director of Immigration [1999] HKCFA 5). And Hong Kong courts “are under a duty to follow” its interpretations (Director of Immigration v. Chong Fung Yuen [2001] HKCFA 48).
Comments & Pingbacks