On Friday, March 8, 2024, the Government of the Hong Kong Special Administrative Region (HKSAR) unveiled a controversial Safeguarding National Security Bill (Bill) to discharge the city’s duty under Article 23 of its Basic Law to enact national security legislation and to supplement the Hong Kong National Security Law (HKNSL) that was imposed on the city in 2020. The government’s sprawling proposals would create an array of broadly worded offenses, including treason, insurrection, crimes relating to state secrets, and “external interference,” and generally limit the due process rights of those accused of national security offenses (whether under the Bill, the HKNSL, or any other law).
A common concept relevant to multiple offenses is that of “Central Authorities” [中央]. It is defined in section 3(1) of the Bill1 as—
the body of central power under the constitutional order established by the Constitution of the People’s Republic of China, including (but not limited to) the National People’s Congress of the People’s Republic of China and its Standing Committee, the President of the People’s Republic of China, the Central People’s Government of the People’s Republic of China and the Central Military Commission of the People’s Republic of China.
UPDATE (Mar. 22, 2024): This definition has made it into the enacted Safeguarding National Security Ordinance.
The Bill used this definition, it turns out, at the suggestion of a body under the National People’s Congress (NPC), China’s top legislature, according to a “legal inquiry response” (LIR) [法律询问答复] posted on the NPC’s website on March 9 (reproduced and translated below). In short, LIRs are authoritative Q&A-style legal opinions issued by the Legislative Affairs Commission of the NPC Standing Committee (NPCSC) that answer the practical legal questions raised by other state institutions on, for instance, the meaning of specific statutory provisions or their authority to legislate on certain matters.
Q: The HKSAR plans to enact a Safeguarding National Security Ordinance, a draft of which includes multiple references to “Central Authorities” [中央]. In accordance with the SAR’s customary practice, it is necessary to define the term “Central Authorities.” Given that neither the Constitution nor any [national] law has defined “Central Authorities,” and that defining the term in SAR legislation implicates the power of the central government [中央事权], please respond to the question of how to define the term “Central Authorities.” (February 28, 2024)
问：香港特别行政区拟制定《维护国家安全条例》，条例草案中数处提述“中央”。根据特区立法通常做法，有必要对“中央”一词作出释义。鉴于宪法和法律中均未对“中央”一词的含义作出规定，特区立法明确“中央”一词的含义又涉及中央事权，请就“中央”一词如何释义问题作出答复。（2024年2月28日）
A: I. The meaning of “Central Authorities,” “Central People’s Government,” and “the body of central power” [中央政权机关] in the PRC HKSAR Basic Law and the PRC Law on Safeguarding National Security in the HKSAR must be understood and grasped in connection with the relevant statutory provisions and the context.
II. Based on the provisions of the PRC Constitution and relevant laws, the definition of “Central Authorities” and “the body of central power” in the HKSAR’s proposed Safeguarding National Security Bill may be specified as follows, to include: (1) the National People’s Congress and its Standing Committee; (2) the PRC President; (3) the Central People’s Government; (4) the PRC Central Military Commission; and (5) [any] other body of central power of the PRC. (Written response of March 1, 2024)
答：一、“中央”、“中央人民政府”、“中央政权机关”在《中华人民共和国香港特别行政区基本法》、《中华人民共和国香港特别行政区维护国家安全法》中的含义，需要结合有关法律条款及上下文来理解和把握。
二、拟议中的香港特别行政区《维护国家安全条例草案》关于“中央”、“中央政权机关”的释义，根据《中华人民共和国宪法》和有关法律规定，可作如下明确，包括：（1）全国人民代表大会及其常务委员会；（2）中华人民共和国主席；（3）中央人民政府；（4）中华人民共和国中央军事委员会；（5）中华人民共和国其他中央政权机关。（2024年3月1日，书面答复）
To our knowledge, this March 1, 2024 response (Response) was the first publicly released LIR to a question from an SAR government. That is not surprising because the SARs have close to full legislative autonomy. Their enacted legislation is, however, subject to NPCSC review. Under article 17 of the HKSAR Basic Law, if the NPCSC finds any Hong Kong law inconsistent with the Basic Law’s provisions “regarding affairs within the responsibility of the Central Authorities or regarding the relationship between the Central Authorities and the [HKSAR],” it may “return” the law, thereby invalidating it immediately. This mechanism might have prompted the Hong Kong government to proceed with an abundance of caution and seek the Legislative Affairs Commission’s view during drafting, for (according to the Response) the government thought that the Central Authorities themselves should decide what that term means.
The Missing Party
As noted, the Response suggested, and the Bill adopted, an open-ended definition of “Central Authorities.” Under the Bill, apart from four enumerated state organs, that term also encompasses any other “body of central power under the constitutional order established by the PRC Constitution” (our emphasis)—which appears even more capacious than the Response’s formulation of “[any] other body of central power of the PRC.”
This definition naturally raises one important question: Is the Communist Party, or any of its components, part of the Central Authorities as well? The answer to this question would bear on the scope of at least three sets of offenses in the Bill.2 For purposes of the crimes relating to state secrets, “state secrets” include “a secret concerning the relationship between the Central Authorities and the HKSAR (including information on affairs relating to the HKSAR for which the Central Authorities are responsible under the Basic Law)” (§ 28). For the offense of unlawfully disclosing “confidential matter,” this last term is defined to include “a matter the disclosure, without lawful authority, of which would prejudice the interest of the Central Authorities” (§ 35(5)). And finally, one way to satisfy the “bring about an interference effect” element of the new “external interference” offense is to “prejudic[e]” the relationship “between the Central Authorities and the HKSAR” or “between the Central Authorities and any other region of China” (§ 51(1)(e)(ii)–(iii)).
This issue caught the attention of several Legislative Council members on the Bills Committee as well. Kennedy Wong and Stanley Ng, for example, asked whether the Bill’s definition would cover Party entities—and, if not, they proposed making it explicit that Party entities count as “Central Authorities.” The Deputy Secretary for Security did not give a direct answer, but instead said that the scope of “Central Authorities” should be understood in conjunction with Article 1 of the PRC Constitution (as amended in 2018), which declares the Party’s leadership “the defining feature of socialism with Chinese characteristics.” Martin Liao, chairman of the Bills Committee, thought the Bill’s definition does already cover the Party because the four enumerated state institutions are all under its leadership (the recording of the Committee meeting showed the Deputy Secretary nod in agreement). Liao nonetheless instructed the government to provide a written response on this matter, which is not yet available to the public.
The Response vs. Other Laws
The scope of “Central Authorities” or “the body of central power” could have even broader implications for the Hong Kong legal system, as the former also appears in the HKSAR Basic Law and the latter in the HKNSL. For example, article 158 of the Basic Law prohibits Hong Kong courts from interpreting a Basic Law provision “concerning the relationship between the Central Authorities and the [HKSAR]” in a final, non-appealable judgment without first requesting the NPCSC to interpret that provision. And under the HKNSL, “subversion” encompasses a range of acts relating to “overthrowing the body of central power of the PRC” or “seriously interfering in, disrupting, or undermining [the body’s lawful] performance of duties and functions.” The meaning of the two terms could conceivably be at issue in future litigation under the Basic Law or the HKNSL.
In this regard, the Response did not purport to interpret the two laws. It merely stated the uncontroversial proposition that “Central Authorities” and “the body of central power” in those two laws should be understood in light of other relevant statutory provisions and the context in which they appear. This will not, however, prevent litigants from relying on the Response’s suggested definition of “Central Authorities” in future litigation involving the Basic Law or the HKNSL. When that happens, the legal status of the Response and LIRs in general—the consensus in the mainland is that they, while highly authoritative, lack the force of law—would very likely be at the heart of the dispute.
- The Hong Kong government’s proposed amendments to the Bill would not alter this definition. ↩︎
- In prescribing several other offenses, the Bill specifically limits “Central Authorities” to a closed list of institutions that exclude Party entities, so does not present the issue discussed in this post. For instance, the intent element of the sedition offense may be satisfied by acting with “an intention to bring [certain individuals] into hatred, contempt of disaffection against” four listed “offices of the Central Authorities in Hong Kong” (§ 22(2)(a)(iii)). ↩︎
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