UPDATE (July 5, 2020): The NPCSC has unanimously approved the Hong Kong National Security Law and added it to Annex III of the Hong Kong Basic Law. The Law took effect in Hong Kong at 11 p.m. on June 30. Our partial summary of it is here.
UPDATE (June 28, 2020): The draft Hong Kong National Security Law has been added to the agenda of the ongoing NPCSC session. We expect the NPCSC to approve the bill and add it to Annex III to the Hong Kong Basic Law by Tuesday.
The 13th NPC Standing Committee (NPCSC) concluded its 19th session on Saturday, June 20. It adopted three bills and approved China’s accession to the Arms Trade Treaty. On that same day, the Council of Chairpersons decided to convene the NPCSC again later this month, from June 28 to 30, merely one week after the 19th session. According to the readout of the Council’s meeting, it has placed six bills on the 20th session’s tentative agenda—not including the draft Law on Safeguarding National Security in the Hong Kong Special Administrative Region [香港特别行政区维护国家安全法] (Hong Kong National Security Law). But once again the readout concludes the list of bills with the character “等” (or “et cetera”), so the Hong Kong National Security Law could be included in the final agenda at the last minute—again. The NPCSC ordinarily meets once every two months; it has not held two sessions in such close proximity in over at least two decades. It seems to us, then, that the 20th session is scheduled to expedite—and pass—the Hong Kong National Security Law, while ensuring that the NPCSC complies with the Legislation Law’s requirement that new laws be adopted after at least two reviews.
Below, we will briefly review the bills adopted on Saturday and preview the upcoming 20th session, before concluding with the possible next steps for the Hong Kong National Security Law.
The new Law on Governmental Sanctions for Public Employees [公职人员政务处分法] will take effect on July 1, 2020. We will publish a separate summary of the Law in the coming days. [UPDATE (June 25, 2020): The summary is available here.]
The revised People’s Armed Police Law [人民武装警察法] codifies the recent reforms to the People’s Armed Police, including its new duties, functions, and command structure. The revision already took effect on June 21.
Lastly, the revised Archives Law [档案法] confirms the legal force of electronic archives and improves public access to governmental archives, among other changes. The revised Law will take effect on January 1, 2021.
Three bills will return to the upcoming NPCSC session for further review.
The draft amendment to the Patent Law [专利法], the draft revision to the Minors Protection Law [未成年人保护法], and the draft Export Control Law [出口管制法] will all return for a second review. We expect the first two to pass after a third review, likely later this year. The draft Export Control Law may pass at the upcoming session, but we will not rule out the possibility of a third and final review later this year.
The Council of Chairpersons has submitted three important new bills to the upcoming session for review.
First, the Council submitted a draft Criminal Law Amendment (XI) [刑法修正案（十一）]. The last major update of the Criminal Law—the Criminal Law Amendment (IX) [刑法修正案（九）]—was adopted in 2015. Developments since then have given us a glimpse of the contents of this new amendment. To start, recent Communist Party policy documents have expressly called for toughening food safety crimes and intellectual property crimes. In addition, State Council agencies such as the Ministry of Emergency Management and the China Securities Regulatory Commission have been pushing to enhance penalties for workplace safety violations and securities violations, respectively. Lastly, the amendment might further restrict the use of the death penalty, continuing a trend that started around 2013. It could further reduce the number of capital crimes (as decided by the Party’s 2013 Third Plenum) or raise the thresholds for imposing the death penalty more generally.
Second, the Council submitted a draft revision to the Administrative Penalties Law [行政处罚法]. This Law was enacted by the NPC in 1996 to govern the procedures for imposing administrative penalties, which include fines, revocation of licenses, and even detentions. This bill, once enacted, will be the first major update of the Law in over two decades. According to a WeChat article summarizing a late 2019 unpublic draft of the bill, the revision would, among other changes, provide for new types of administrative penalties, introduce additional procedural requirements, and grant local legislatures greater leeway to set administrative penalties based on local conditions. The NPCSC Legislative Affairs Commission, the bill’s drafter, confirmed this last set of changes.
Finally, the Council submitted a draft Data Security Law [数据安全法]. The draft law will likely expand on and supplement the data security provisions in the Cybersecurity Law [网络安全法] and National Security Law [国家安全法]. Scholars have urged the Law’s drafters strike a fine balance between “personal privacy, corporate interests, and national security.”
We expect all three bills to pass after three reviews.
Hong Kong National Security Law: What’s Next?
As noted earlier, we are hard pressed to find a reason for the second NPCSC session this month other than that the NPCSC is set to approve the Hong Kong National Security Law by the end of the month. If this prediction is borne out, what actions would the relevant government actors take in the next ten days?
First, it appears that there is now little chance that the NPCSC would release a draft of the Law for public comments. The best-case scenario is that it conducts a week-long public consultation before its upcoming session starts next Sunday, but this is still highly unlikely.
[UPDATE (June 22, 2020): The South China Morning Post has reported that a full version of this bill would not be made public until after it is approved by the NPCSC.]
After the session starts, the NPCSC will of course first approve the Law, sometime during the three-day event. President Xi Jinping will then sign a presidential order to promulgate it, and it would at that point officially become a national law.
The NPCSC is likely to separately decide, also during the upcoming session, to add the Law to Annex III to the Hong Kong Basic Law, so that it could be enforced in Hong Kong. The Basic Law requires the NPCSC to consult its Hong Kong Basic Law Committee and the Hong Kong Government before doing so, but process will most likely be just a formality. Since both Chinese and English are Hong Kong’s official languages, the NPCSC might also adopt a decision next week to approve an official English translation of the Hong Kong National Security Law, as it did with the Basic Law.
Finally, because the Law will be implemented in Hong Kong “by way of promulgation,” with no local legislation required, the Chief Executive will, as the last step of this legislative process, issue a notice in the Hong Kong Government Gazette to promulgate the Law. She will also designate an effective date for the Law, which could well be July 1, 2020, the 23rd anniversary of Hong Kong’s handover to China.
Edited by Changhao Wei