NPCSC Releases Some Details of Draft Hong Kong National Security Law, But Withholds Information on Criminal Provisions

On Saturday, June 20, the NPC Standing Committee (NPCSC) disclosed some details of the highly anticipated 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]. It did not release the draft that it reviewed this week. Rather, the state-run Xinhua News Agency published an excerpt from the explanation of the draft; an unofficial translation of part of the excerpt is available here. As of this writing, the NPCSC has not officially solicited public comments on the draft. Below, we will introduce the main contents of the draft Law (as summarized by the explanation), with brief analysis of certain provisions.

According to the explanation, the draft consists of six chapters (and 66 articles): general provisions; duties and institutions of Hong Kong to safeguard national security; offenses and penalties; jurisdiction over cases, application of law, and procedures; institutions of the central government in Hong Kong for safeguarding national security; and supplementary provisions. The explanation describes the Law as a “comprehensive statute” with provisions on both substantive and procedural criminal law as well as ones that set up new government institutions.

The summary below will follow the order of the chapters.

General Provisions

Chapter I reiterates some of the general principles on national security that we have seen elsewhere, for instance in the very NPC decision that authorizes this Law. This Chapter declares that the central government bears the “ultimate responsibility” for the national security affairs of Hong Kong, that Hong Kong has the “constitutional duty” to safeguard national security, that Hong Kong must enact its own national security legislation as early as possible, and that all entities in Hong Kong are prohibited from engaging in activities that endanger national security. Hiding in this Chapter is a provision that requires any Hong Kong resident who runs for or takes up public office to sign a document swearing to uphold the Hong Kong Basic Law and pledging allegiance to Hong Kong. Previously under the NPCSC’s November 2016 Basic Law interpretation, this requirement applied only to principal executive officers, legislators, and judicial personnel—not to every civil servant. [Correction: A prior version of this post erroneously stated that this new provision merely repeats the requirement of the NPCSC interpretation.]

This Chapter also stresses that Hong Kong must “respect and preserve human rights” in safeguarding national security. It specifically requires Hong Kong to protect its residents’ freedom of speech, freedom of the press, freedom of association, and other rights and liberties protected by the Basic Law, the International Covenant on Civil and Political Rights (ICCPR), or the International Covenant on Economic, Social and Cultural Rights (the latter two are made applicable in Hong Kong by article 39 of the Basic Law). This Chapter also requires prosecution of national security crimes to follow certain “rule-of-law principles,” including nulla poena sine lege (or “no penalty without a law”), presumption of innocence, the right to counsel and other procedural rights of the accused, and prohibition on double jeopardy. These protections for criminal suspects and defendants have already been enshrined in the Basic Law, the ICCPR, and the Hong Kong Bill of Rights Ordinance. The explanation does not specify, however, whether the new crimes created by this Law would apply retrospectively, although the prohibition on retrospective application of criminal law is understood to be part of the nulla poena sine lege principle.

New Hong Kong Institutions

Chapter II establishes several new institutions in Hong Kong with responsibilities over national security matters.

First, it establishes a Commission for Safeguarding National Security [维护国家安全委员会]. The Commission performs mostly planning, policy-making, and coordinating functions. It bears the “primary responsibility” for safeguarding national security in Hong Kong and will answer to the central government. The Hong Kong Chief Executive will serve as the chairperson of the Commission, and nine other high-ranking Hong Kong officials will serve as ex officio members, including the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Commission of Police, and the Director of Immigration. The Commission will also have a National Security Adviser [国家安全事务顾问], to be appointed by the central government.

Second, the Police Force will establish a dedicated national security division, with the appropriate law enforcement capabilities.

Finally, the Department of Justice will establish a national security department specializing in the prosecution of national security offenses.

New National Security Crimes

There seem to be heavy omissions from the part of the explanation that describes the four new national security crimes: secession, subversion of State power, terrorism, and collusion with foreign or external forces to endanger national security. The excerpt does not define any of the crimes, but does say that Chapter III includes six subparts, so it would appear that the crimes are not as cursorily defined as are their counterparts in the mainland’s Criminal Law. (To be sure, that the definitions of the crimes take up some space on paper does not necessarily mean that they are definite and narrow.) This Chapter also prescribes the corresponding criminal and non-criminal penalties for each of the four crimes as well as the scope of their application.

Jurisdiction, Applicable Law & Procedures

Chapter IV includes four sets of main provisions, according to the explanation.

First, except in “specified circumstances” [特定情形]—it is not clear what they are—Hong Kong will exercise jurisdiction over national security cases. The explanation later says that the central government will set up a new agency in Hong Kong that would exercise jurisdiction over such cases in those “specified circumstances,” without giving further details.

Second, national security prosecutions handled by the Hong Kong government must follow this Law and Hong Kong law. In particular, this Chapter requires that prosecution of the four new national security offenses be “upon indictment.” This means that defendants in such cases may be either tried in the Court of First Instance (CFI) and before a jury, or tried in the District Court where jury trials are not available, although the CFI could be the exclusive forum for trying national security cases under undisclosed provisions in this Chapter. It is also unclear whether this Chapter would include other provisions that restrict a defendant’s right to a jury trial in the CFI.

Third, when investigating national security crimes, the new national security division of the Police Force is authorized to take measures that current Hong Kong law allows for the investigation of “serious crimes” (presumably those covered by the Organized and Serious Crimes Ordinance), and may carry out other functions and measures this Law prescribes.

Finally, the Chief Executive is required to select a pool of judges from active judges and “qualified” retired judges to hear all national security criminal cases. A Hong Kong news outlet reports that the Chief Executive will not get to choose the presiding judges in individual cases. Based on the excerpt alone, it does not appear that foreign judges would be barred from hearing national security cases, as many have feared.

New Central Government Agency in Hong Kong

Chapter V establishes a new central government agency in Hong Kong: the Office of the National Security Commissioner [维护国家安全公署]. The Office will have the authority to, among other things, “supervise, guide, coordinate, and support” the Hong Kong government in safeguarding national security; “collect and analyze national intelligence information”; and “handle cases of crimes endangering national security in accordance with law.” This Chapter also requires personnel of the Office to follow national law as well as Hong Kong law, although the explanation later says that this Law would trump Hong Kong law in the event of a conflict.

As noted earlier, the Office (and other unspecified, “relevant” central government agencies) will have jurisdiction over national security cases under “specified circumstances.” This Chapter is said to lay down rules that they must follow in handling those cases. According to the explanation, granting central government agencies jurisdiction over “very few” national security cases would help avoid the “state of emergency” under article 18, paragraph 4 of the Basic Law. That paragraph provides that, when the NPCSC declares a state of emergency in Hong Kong due to “turmoil within [Hong Kong] which endangers national unity or security and is beyond the control of the [Hong Kong] government,” the central government may order that one or more national laws be enforced in Hong Kong.

Supplementary Provisions

The explanation mentions two important provisions. First, in the event that this Law conflicts with Hong Kong law, this Law will prevail. But it is not clear on what authority this provision is based. Neither the Basic Law nor the Legislation Law [立法法] provides that Hong Kong law is inferior in force to laws enacted by the NPCSC. Second, the NPCSC will have the sole power to interpret this Law. Under the P.R.C. Constitution and the Legislation Law, the NPCSC has the unquestionable power to interpret all national statutes. But as a practical matter, it is unclear how the Hong Kong courts could hear and decide cases arising from this Law without interpreting it. There could be provisions that delegate to the Hong Kong courts some interpretative authority, but which the excerpted explanation neglects to mention.

We do not know when this Law would take effect once enacted.

Taige Hu contributed to this post.

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