Imposing Chinese security law on HK would flout Basic Law

January 23, 2015 12:02
Article 5 of the Basic Law says “the socialist system and policies shall not be practised in the Hong Kong”. Photo: internet

A Hong Kong representative to the National People's Congress recently said the national security law of the mainland can be applied to the city and should be brought in temporarily.

What he was doing was repeating a suggestion made by a law professor in Beijing before the Umbrella movement took place.

However, the law that they claimed was also applicable to Hong Kong was, in fact, abolished on Nov. 1.

It was replaced by the Anti-Espionage Law, which has a narrower scope, while the new national security law remains just a draft that is far from being finalized.

At the moment, China is in a gap between national security laws, and so it is simply illogical to say the mainland's "national security law" can apply to Hong Kong, since the law doesn’t even exist yet.

Besides, the Basic Law doesn't provide any mechanism under which mainland laws can be “temporarily introduced” to Hong Kong.

It is inevitable that the NPC deputy's remarks would immediately spark a controversy.

On Tuesday, lawmaker and Senior Counsel Ronny Tong Ka-wah said the idea is unacceptable.

Fellow Civic Party legislator Dennis Kwok Wing-hang, a barrister, said it would undermine the “one country, two systems” principle and the rule of law in Hong Kong.

New People's Party lawmaker Michael Tien Puk-sun, who is also a representative to the NPC, simply called the idea “nonsense”.

The next day, Elsie Leung Oi-sie, the deputy director of the Basic Law Committee, said it would be inappropriate to introduce the "national security law" to Hong Kong.

The term “national security” has a twofold meaning.

On the macro level it refers to the country's territory, sovereignty, global strategy, diplomacy, economy, society, culture and even food supply, while on the micro level it refers to the various national security and law enforcement agencies (the so-called “dagger agencies”).

On the macro level, it is Communist Party general secretary Xi Jinping who is in charge, as well as the National Security Committee that he chairs.

On the micro level, it is mainly the Ministry of National Security -- which reports to the State Council -- that takes care of business.

The new national security bill, unlike the Anti-Espionage Law, is a massive and comprehensive undertaking that is still in its infancy.

Even if the bill is passed, it still cannot be introduced to Hong Kong, because there is simply no existing legal mechanism under the Basic Law to do so.

As a matter of fact, Article 23 of the Basic Law already contains an outline of provisions to protect national security and prohibit subversion. 

All that is necessary is for Hong Kong to decide to enact the provisions, which it is able to do under the high degree of autonomy that it is guaranteed by the Basic Law.

There is neither any “necessity" nor “urgency” to introduce the "national security law" to Hong Kong.

In his contribution to the debate, former chief executive Tung Chee-hwa was inaccurate in saying the central authorities have the power to apply any national law to Hong Kong, because there are, in fact, strict limits on doing that.

Article 18 of the Basic Law says “national laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law”, and 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 the limits of the autonomy of the Region”.

National security matters in Hong Kong clearly fall within its autonomy.

There are 12 laws listed in Annex III. Apart from those dealing with the national flag and emblem and the PLA garrison in the city, they are mostly related to diplomacy.

Any attempt to introduce the "national security law" to Hong Kong, even temporarily, would not only flout the Basic Law but also infringe on the "one country, two systems”  principle and the city's autonomy.

For instance, Article 1 of the now abolished national security law states that “the proletarian dictatorship of the people and socialism must be safeguarded”.

Article 5 of the Basic Law, however, says “the socialist system and policies shall not be practised in the Hong Kong Special Administrative Region”.

It doesn’t take a legal expert to figure out that the two clauses are hardly compatible with each other.

Some say the provisions of the "national security law" can be introduced by adding them to Annex III of the Basic Law.

I am afraid those who make this suggestion haven't gone through Annex III properly.

What the annex does is simply list the titles of the laws, not their articles.

For a law to come into force in Hong Kong, its articles must be published in full in the Government Gazette.

This article appeared in the Hong Kong Economic Journal on Jan 22.

Translation by Alan Lee

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Elsie Leung, the deputy director of the Basic Law Committee, said it would be inappropriate to introduce China's national security law to Hong Kong. Photo: HKEJ

Hong Kong Economic Journal columnist