—P. Y. Lo, LLB (Lond.), PhD (HKU), Barrister-at-law, Gilt Chambers, Hong Kong
A cartoon appeared in the US press several months ago, probably before COVID-19 was declared as a pandemic, with this caption: ‘That’s odd: My Facebook friends who were constitutional scholars just a month ago are now infectious disease experts …’.
This post introduces the current national security law-making by the Chinese Central Authorities for Hong Kong, a Special Administrative Region of China governed by systems different from those of China’s pursuant to a Basic Law that the Chinese Central Authorities enacted 30 years ago, in the language of pathology, epidemiology and immunology.
The Chinese Central Authorities have conducted a pathological analysis of Hong Kong. They found Hong Kong’s systems lacking in several respects essential for the safeguarding of China’s national sovereignty, security, territorial integrity and national development interests and Hong Kong’s stability and prosperity. In the Hong Kong Basic Law, there is a provision obliging Hong Kong to ‘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’. The Hong Kong Government sought to enact the “constitutionally obligated legislation” in 2003, only to halt and then withdraw the draft legislation after hundreds of thousands of Hong Kong residents marched in the streets of Hong Kong on 1 July 2003 to protest against the encroachments that the draft legislation might have on their civil liberties. To make matters worse, none of the law enforcement agencies in Hong Kong has a specialized division tasked with safeguarding national security, albeit that there are units of the Hong Kong Police Force specializing in public order events, anti-terrorism and anti-money laundering. In the meantime, political opposition in Hong Kong has become more vocal, more physical, more innovative and more directed towards the Chinese Central Authorities ever since the Standing Committee of the National People’s Congress (NPCSC) decided on 31 August 2014 to require the selection of Hong Kong’s Chief Executive to be made under a restrictive framework of ‘universal suffrage’. On the other hand, the Government of Macao, another Special Administrative Region, carried out the similar constitutional obligation in 2009 and boosted that up in 2018 with the establishment of a commission to safeguard national security. And Macao has enjoyed public tranquility.
The Chinese Central Authorities have also conducted an epidemiology study on the situation of Hong Kong after the 2014 Umbrella Movement, which was commenced to protest against the Decision of the NPCSC of 31 August 2014, finding escalating symptoms of civil unrest, strikes and boycotts, student defiance, and street violence, much of which were perpetrated, since June 2019, by ‘black bloc’ individuals equipped with helmets, eye goggles, respirators, umbrellas and flags displaying slogans including “Liberate Hong Kong, Revolution of Our Times” and “Hong Kong Independence”, and supported by a network of volunteer medics, drivers, counsellors, and lawyers. The Director of the Chinese Central Government’s Liaison Office in Hong Kong, Luo Huining, had likened these troublemakers as a kind of ‘political form of coronavirus’. The Central Authorities also found external influence that could, if unchecked, lead to a contagion into the Chinese Mainland. Zhang Xiaoming, the deputy director of the Chinese State Council’s Hong Kong and Macao Affairs Office summed up on 8 June 2020 that Taiwanese and US forces ‘have mistaken the restraint and tolerance shown by the Central and the Special Administrative Region governments as weakness. They have gone too far’.
Having concluded that the malady afflicting Hong Kong is a combination of auto-immuno-deficiency and external infections, the Chinese Central Authorities made haste to design the cure (or, as Zhang Xiaoming would prefer to say, the ‘anti-virus software’). A two-step ‘according to the law’ approach was devised. As the Special Administration of Hong Kong was established and its Basic Law enacted by the National People’s Congress (NPC) pursuant to Article 31 of the Chinese Constitution in 1990, it was decided that the first step would be taken by the NPC invoking Articles 31, 62(2), (14) and (16) of the Constitution. On 28 May 2020, the NPC Session, having found that in recent years, Hong Kong’s risks to national security have become apparent, that various types of illegal activities such as ‘Hong Kong Independence’, separatism, and violent terrorist activities have seriously endangered the sovereignty, unity and territorial integrity of the State, and that some foreign and outside forces have brazenly interfered in Hong Kong’s affairs and used Hong Kong to engage in activities endangering China’s national security, adopted the Decision of the National People’s Congress on Establishing and Improving the Legal Systems and Implementation Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region.
The Decision, apart from stating China’s consistent policy towards Hong Kong and its firm opposition against any foreign interference in Hong Kong’s affairs and any foreign or outside forces using Hong Kong ‘to carry out secessionist, subversive, infiltrative, or destructive activities’, iterated on Hong Kong’s constitutional duty to preserve ‘the nation’s sovereignty, unity and territorial integrity’, and reiterated Hong Kong’s constitutional obligation to enact legislation required under Article 23 of the Basic Law, introduced two authorities that would serve to deal with the syndrome in Hong Kong. The first was to authorize ‘organs of the Central People’s Government relevant for the protection of national security’ to establish a post in Hong Kong and carry out activities. The second was to authorize the NPCSC to enact legislation on establishing and improving the legal systems and enforcements mechanisms for safeguarding national security in Hong Kong and that legislation should effectively ‘prevent, stop and punish’ conduct or activity that seriously endanger national security such as secession, subversion of state power, organizing and carrying out terrorist activities, and activities whereby foreign and outside forces interfere in Hong Kong affairs. This NPCSC legislation, upon enactment, would be introduced into Annex III of the Basic Law by the NPCSC as a ‘national law” applicable to Hong Kong and implemented in Hong Kong by promulgation. Hong Kong’s auto-immuno-deficiency would be tackled by the introduction of elements of China’s immuno-agents and a bespoke immune system designed in China for installation directly into Hong Kong’s existing systems. The intention, it seems, is not only to vaccinate, but also to transplant active phagocytes or immune cells, including macrophages.
The NPCSC met on 18 to 20 June 2020 with an agenda item to examine a draft Law on Safeguarding National Security in the Hong Kong Special Administrative Region. The draft legislation was not released for public consultation or discussion after the session; it seemed that even the attending delegates were not allowed to retain copies of the draft. Next, the Chairmen’s Meeting of the NPCSC met to schedule the next NPCSC session to take place on 28 to 30 June 2020, and taking an educated guess of the informal briefings and occasions for exchange of views in Hong Kong between selected members of the Hong Kong public and visiting officials from Beijing in the week beginning on 22 June 2020, there is a sporting chance that the draft legislation would be revised for the second examination in the next NPCSC session and, if the discussion goes well, adoption and resolution for introduction into Annex III of the Basic Law. This timing appears to dovetail with the nomination period in July 2020 of the Hong Kong Legislative Council election of 6 September 2020, the general election that Hong Kong’s pro-democracy and China opposing political factions aim to capture a simple majority of seats for a bargaining position with the Chinese Central Authorities. Having a ‘weapon of the law’ at this time of anticipated ‘struggle’ is consistent with the approach of the Chinese Central Authorities.
Compatibility between the systems to be established under the Law on Safeguarding National Security in the Hong Kong Special Administrative Region and the existing systems of Hong Kong provided under the Basic Law is a key element to the success of this securitization/’sanitation’ exercise to Hong Kong. Host resistance to vaccination or transplant may not only render ineffective the intended cure but also cause serious, and possibly fatal, damage.
Here, one can see signs of host resistance as Xinhua News Agency reported on 20 June 2020 more or less the explanations of the draft Law on Safeguarding National Security in the Hong Kong Special Administrative Region to the NPCSC session of 18 to 20 June 2020. While the draft legislation requires respect of specified ‘rule of law principles’ that appears to correspond to fundamental rights protected under the Hong Kong Basic Law and the Hong Kong Bill of Rights, including the rights of the accused in criminal proceedings, it provides for the establishment within the Hong Kong Government of a Commission for Safeguarding National Security serviced by an advisor sent by the Central People’s Government, a division of the police force to investigate and enforce national security legislation, and a section of the Department of Justice to prosecute national security offences. All these new parts of the Hong Kong Government must coordinate with a Commissioner of the Central People’s Government for Safeguarding National Security in Hong Kong and the officers of his Office. Hong Kong’s Chief Executive is obliged to designate judges and magistrates at all levels of courts for the hearing and determination of criminal cases alleging the commission of a national security offence. While the elements of the national security offences have not yet been made public, it is reasonable to guess from the wording of the explanations that these offences will follow closely the chapter of the Criminal Law of the People’s Republic of China on Crimes of Endangering National Security and the anti-terrorism offences under the umbrella of Article 120 of the Criminal Law of the People’s Republic of China. Last but not least, the Central Authorities are to reserve jurisdiction to handle cases of contravention of the national security offences in ‘specified circumstances’ without stating, yet, the specifications.
Reactions from the Hong Kong politicians and the Hong Kong legal profession have been critical. Some politicians suggest that the Central advisor to the Hong Kong Government’s Commission for Safeguarding National Security and the Commissioner of the Central People’s Government for Safeguarding National Security in Hong Kong will become ‘overlords’. Other politicians believe that the reservation of jurisdiction in the yet to be specified ‘specified circumstances’ will lead to the deprivation of fundamental rights protection in Hong Kong and the rendition of criminal suspects out of Hong Kong. Andrew Li, the first Chief Justice of the Hong Kong Special Administrative Region, issued a public statement expressing strong concerns of the impact of the legislative proposals on Hong Kong’s judicial independence. The legal professional bodies, the Hong Kong Bar Association and the Law Society of Hong Kong, have issued statements expressing serious concerns over the proposed authority of the Chief Executive to designate judges for hearing and determining national security cases, the possible authority of the Commissioner of the Central People’s Government for Safeguarding National Security in Hong Kong and his officers from Mainland China to supervise the governing institutions in Hong Kong in the implementation of the Law on Safeguarding National Security in the Hong Kong Special Administrative Region, and the Central Authorities’ reservation of jurisdiction over Hong Kong residents and other persons in Hong Kong. The Hong Kong Branch of the International Chamber of Commerce has issued a statement cautioning, at the end, that:
An important aspect of the Basic Law is that in the eyes of the international business community, the important values and freedoms required to transact business competitively in Hong Kong, such as the rule of law and the free flow of information, are fully ring-fenced and protected by the “two systems” concept. But the way in which the National Security law is being introduced breaches this fence and is a considerable cause for further concern that it could be the precedent for further breaches in the future.
Hypersensitivity of the host to the vaccine and transplanted live phagocytes is expected. The legal and judicial systems of Hong Kong may have to become the centre stage of the resistance if it were conducted by legal means such as judicial review of the promulgated Law on Safeguarding National Security in the Hong Kong Special Administrative Region. ‘Ordinary’ prosecutions under the Law will of course be before the Hong Kong courts. Persons subject to the ‘specified circumstances’ based investigation, handling and rendition might seek protection from the Hong Kong courts. Judges, prosecutors and lawyers in Hong Kong will have to grapple with a national law enacted to have effect in Hong Kong in criminal investigations and proceedings but utilising concepts and usages of the Mainland Chinese socialist legal and criminal justice systems. The risk of a cytokine storm, both inside and outside the courts in Hong Kong, should not be underestimated. It is hoped that the patient will not be admitted into the ICU.
Suggested Citation: P.Y. Lo, Constitutional “Vaccination”: China’s National Security Law-Making for Hong Kong, Int’l J. Const. L. Blog, June 30, 2020, at: