The Malaysian Chamber of Commerce in Hong Kong recently asked me to speak to their members and guests about the National Security Law (NSL) and the future of Hong Kong’s legal system. I have noticed there is much misunderstanding about the NSL’s origins and it is time to get the record straight.
The NSL has just had its fifth birthday, having been promulgated on June 30, 2020. Exactly how did it come about that Hong Kong has a NSL? After all, the Basic Law makes no mention of an NSL apart from Article 23.
The NSL was not legislated in Hong Kong. It was imposed on Hong Kong by the NPC.
Why? Because of the 2019-20 riots.
Why did those riots happen? Because of the democracy movement and calls for localism and Hong Kong independence.
And why did such movements exist? Because of the impossible promises made by Governor Chris Patten, who ignored countless warnings not to introduce democracy, even by Lee Kwan Yew, the British Foreign Office and the boss of HSBC.
How did a politician like Patten come to be Governor? Because Prime Minister John Major offered him Hong Kong in compensation.
Compensation for what? He had been Chairman of the Conservative party and had engineered the party’s victory in the 1992 general election but he failed to be re-elected as Member of Parliament for the city of Bath. His party had won an election but he had not. He was suddenly without a job. Hong Kong was his compensation.
Thus it was that, in a supreme irony, the electors of Bath started a train of events that led, 34 years later, to Hong Kong’s NSL.
If those electors in Bath had chosen to re-elect Patten, he wouldn’t have become Governor and the British Foreign Office would no doubt have continued to appoint a civil servant as Governor — and Hong Kong would never have been politicised by the word ‘democracy’ — and it is very unlikely we would now have an NSL!
Laws to control public disorder
Of course, even in colonial times, as well as the Common Law there were specialised laws to control public disorder such as the Societies Ordinance, the Peace Preservation Ordinance, and the Summary Offence Ordinance.
In 1966 the Cultural Revolution rioting in Hong Kong necessitated the enactment of the Public Order Ordinance. Like the NSL these laws to control criminal behaviour brought peace to the streets and allowed law-abiding citizens to run businesses and maintain a dynamic economy.
Chaotic times
An attempt, in 2003, to enact Article 23, as mandated by the Basic Law, was shot to pieces by the opposition by the democratic camp that had been spawned by Governor Patten. Mayhem followed with the economy paralysed by Occupy Central and the Umbrella Revolution.
An attempt to introduce an Extradition Bill to permit the extradition of criminals to Taiwan, Macau and the Mainland energised further disorder — despite the fact that it was eminently justified in that it came about as a result of a very brutal murder, by a Hong Kong resident, of his pregnant girlfriend in Taipei.
So it was that 21 years after the withdrawal of the 2003 Bill — who can say China isn’t patient ! — Article 23 was enacted in the form of the Safeguarding National Security Ordinance.
Mission accomplished
After all those decades of wrangling, it is time to ask: have the NSL and Article 23 done their jobs? Is Hong Kong peaceful, are shopkeepers able to run their the businesses?
The answers is obviosuly yes. The weeds planted by Governor Patten’s democratic promises have been well and truly killed.
Crucially, the one-country two-systems principle, so very nearly destroyed by the rioting, has thankfully survived.
The NSL and Article 23 have not only brought peace and stability, they have fundamentally changed the criminal law landscape. New offences such as theft of state secrets and espionage, sabotage, endangering national security, external interference, insurrection and treason have been added to the criminal book of laws. Article 23 also allows closed door trials and gives the police the power to detain suspects for up to 16 days without charge.
Next month I will consider the likely legal landscape into the future and touch on Hong Kong’s looming 2047 threshold.
Cheng Huan is an author and a senior counsel who practices in Hong Kong
