What You Should Know About the NPC's Draft Decision on HK National Security Legislation

Local | 25 May 2020

Foreword

We are a group of ordinary people loyal to the motherland and love Hong Kong. Just like everyone of you, we live in this city, which inspires us every day and also worries us sometimes. We believe "one country, two systems" is the best arrangement for Hong Kong as well as the motherland.

We were caught off guard when Hong Kong was plunged into a dark vortex filled with violence, filibustering, personal vendetta and social unrest. Many of you are probably wondering if we can accept losing Hong Kong and what we can do to save the city.

No matter how fascinating the outside world is, everyone needs a home to go back to and feel safe in. For us the motherland is our ultimate protection and support in a world full of uncertainties, turbulences, struggles and predators. There is no other choice than our own country when it comes to security. With the National People's Congress (NPC)  set to deliberate a proposed legislation for the SAR to plug a loophole in national security, we have collected a number of questions raised by members of the public and here are the answers provided by some law experts:

Question 1: Will "one country, two systems" be changed when the law concerned takes effect in HK?

Answer:

~ No. On the contrary, the law is intended to strengthen "one country, two systems".

~ The opposition camp in Hong Kong have conspired with outside forces to undermine "one country, two systems" and national security through such illegal campaigns as “Occupy Central” and "black revolution".  If no decisive steps are taken to stop such illegal acts soon not only national security will be endangered but also the "one country, two systems" principle and well-being of Hong Kong society be undermined.

~ The proposed law is intended to ensure "one country, two systems" remains on the right track and to restore order in Hong Kong, so that the SAR can focus on socio-economic development and addressing its deep-seated social problems.

Question 2: Is the NPC and its Standing Committee's (NPCSC) move to enact the proposed law in conflict with the HKSAR’s Basic Law?

Answer:

~ No. National security is the sovereign state's responsibility to begin with. It covers a wide range of public concerns including public health security, economic security and financial security.

~ Article 23 of the Basic Law authorizes the HKSAR to prevent seven types of national security threats through local legislation; but the central authorities maintain the power to pursue such a legislation when needed.

~  The statutory basis of the NPC’s move is the nation's Constitution and the Basic Law of the HKSAR. Article 31 of the Constitution provides: "The State may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in the light of specific conditions." Article 62 of the Constitution stipulates that the NPC shall decide on the establishment of SARs and the systems to be instituted there. The NPC also has the power to supervise the implementation of the Basic Law of the SARs.

Question 3: Why did the NPC move to enact a national security law for HK now?

 Answer:

~ Because the national security loophole in Hong Kong is posing so great a threat to national security that it cannot be overlooked any longer.

~ Since June last year separatists in Hong Kong have stepped up illegal activities including riots that often bordered on terrorist attacks. Meanwhile, hostile external forces have intensified interference in Hong Kong's internal affairs. This statutory loophole has never posed a more serious danger than now.

~ The HKSAR has failed to fulfill its national security obligations according to Article 23 of the Basic Law nearly 23 years after its establishment. The State can no longer sit on its hands and watch separatist, subversive and terrorist activities and foreign interference going on in Hong Kong without doing anything to stop them. The NPC has no choice but to enact the proposed law.

Question 4: Why is the legislation designed to curb only separatist, subversive and terrorist activities and foreign intervention in HK affairs?

Answer:

~ Because it only targets a small number of people who pose the most threat to national security.

~ It is meant to protect the great majority of Hong Kong residents by punishing a small number of individuals engaged in criminal activities detrimental to national security and overall interest of Hong Kong society.

~ The overwhelming majority of Hong Kong residents are law-abiding citizens and would never take part in such criminal activities.

Question 5: Why does the NPC include "organizing and carrying out terrorist activities" in national security crimes?

Answer:

~ Because changes in the international security environment and the present social conditions in Hong Kong demand it.

~ Terrorist attacks have occurred in many places around the world since the 9/11 incident and terrorism has become a common threat to all nations. In addition to this global reality, Hong Kong has experienced increased criminal activities by separatists and opposition groups, including use of lethal weapons and explosives commonly used by terrorist organizations around the world. All that points to emerging domestic terrorism.

~ It is necessary to list "organizing and carrying out terrorist activities" as a national security crime to ensure public safety in Hong Kong as well as remove any threat to national security.

Question 6: Will the national security law infringe on Hong Kong residents' basic rights and freedom of protest, assembly, procession and expression, and freedom of the press?

Answer:

~ No. It is designed to curb the above-mentioned four types of criminal activities that pose a serious threat to national security by punishing a small number of perpetrators. It is not designed to and will not infringe on the basic rights and freedoms of Hong Kong residents protected by the Basic Law.

Hong Kong people can still take part in authorized peaceful protests, assemblies, make speech and publication in line with the Hong Kong laws.

~ Hong Kong people need not fear about violating the law when exercising these rights and freedoms, such as participating in the “June 4 assembly”, as long as such activities do not have separatist, subversive or terrorist intentions.

Question 7: Will the national security legislation affect Hong Kong residents when they discuss current affairs, conduct academic exchanges, travel overseas, immigrate to other places, engage in business, trade, religious, cultural and sports activities with foreign or non-local entities? 

Answer:

~ None of the basic rights and freedoms protected by the Basic Law and Hong Kong law will be restricted by the new national security legislation.

~ The Basic Law guarantees Hong Kong residents' rights and freedom of speech, including discussing current affairs, criticizing the government, academic exchange, legitimate crossing of Hong Kong boundaries, overseas travel, immigration, and all normal exchanges with foreign or external entities.

Question 8: Will Hong Kong residents be restrained from using social media?

Answer:

~ No. They can still use social media in a normal way without any restrictions, and digital communication facilities will not be affected at all.

~ They can still use social media and telecommunication apps such as Facebook, Instagram and WhatsApp as they do now. Freedom of communication and freedom of speech will be fully guaranteed.

Question 9:  Why doesn’t the proposed national security legislation affect the daily lives of most of the Hong Kong residents?

Answer:

~ The proposed law will not bring any changes to the daily lives of the majority population in Hong Kong.

~ It only targets acts endangering national security, namely secession, subversion, terrorism and external interference in the city’s affairs.

~ Social stability, citizens’ rights and freedom can be guaranteed only by safeguarding national security.

Question 10:  Why is Hong Kong the most unguarded city in the world when it comes to national security?

Answer:

~ National security legislation has been enacted in most major countries that practice capitalism, whereas no such law has been introduced in Hong Kong. While some existing ordinances in Hong Kong are applicable to crimes involving certain acts endangering national security, they have been left dormant and cannot be practically invoked to achieve the desired effect. Hong Kong in effect is unguarded or “defenseless” when it comes to national security.  In the absence of a national security law, maneuvers endangering national security have been perpetrated by the lawless without scruple in Hong Kong, particularly in recent years.  Arguably, Hong Kong is one of the rare places where the legal system and enforcement mechanism for safeguarding national security is the most insufficient and weakest in the world.

~ No national security legislation has ever destroyed the capitalist system in any country or region in the world. How could it do so in Hong Kong?

Question 11: What have other countries done in safeguarding national security?

Answer:

~ It is a common practice around the world to safeguard national security through legislation and law enforcement.

~ The constitutions of more than 100 countries, as well as major international covenants – such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights — have made it clear that no right or freedom exists for anyone to endanger a country’s national security.

~ In the United States, the National Security Act of 1947 led to the setup of National Security Council chaired by the president. The council is the highest decision-making body for national security matters. Since the 9/11 incident, the US have enacted dozens of statutes on national security, including “USA Patriot Act”, “Homeland Security Act” and “Intelligence Reform and Terrorism Prevention Act”. The Department of Homeland Security has spared no effort to build up national security laws and strengthened law enforcement. In 2018, the CLOUD Act was passed in a swift process, extending the US’s long-arm jurisdiction.

~ Many major powers in the world including the United Kingdom, France, Germany, Russia and India have enacted laws to safeguard national security and formed decision-making councils for the enforcement of the relevant laws.

~ Hong Kong has become a weak link in national security because it has not been guarded by any national security law since its return to the motherland. It is imperative for the SAR to plug this loophole.

Question 12: Wil it be illegal to promote separatism after the proposed national security law is enacted?

 Answer:

~ It is out of the boundaries of freedom of speech to promote separatism, just like the preaching of Nazism and racism.

~ There has been an international consensus that freedom of speech is not an absolute right. In 2019, the masterminds of the Catalan independent movement in Spain received heavy sentences for sedition. Both the European Union as a whole and its individual member states supported the government of Spain to crack down on separatism.

Question 13: Is the HKSAR still obligated to legislate according to Article 23 of the Basic Law after the NPCSC enacts the proposed national security law?

 Answer:

~ The NPC draft decision to authorize its Standing Committee to enact a national security law applicable to Hong Kong is only intended to tackle the most salient risks and most pressing issues in safeguarding national security in Hong Kong. It does not spare the HKSAR from its constitutional responsibility to legislate, according to Article 23 of the Basic Law, to outlaw seven types of acts endangering national security. 

~ The HKSAR still needs to enact a national security law according to Article 23, which is to be aligned with the one to be enacted by the NPCSC.

Question 14: Will the NPC’s proposed national security legislation encroach on or even substitute the existing laws in HK?

 Answer:

~ The proposed legislation will not encroach on Hong Kong’s existing legal system or substitute the SAR’s existing laws

~ The proposed law is intended to plug the loopholes and inadequacies in the SAR’s existing laws. It will be compatible with Hong Kong’s existing legal system, having no impact on its judicial independence and final adjudication.

Question 15: The proposed law will be added to Annex III of the Basic Law for implementation after promulgation. Is this approach in compliance with the Basic Law?

 Answer:

~ This approach is in full compliance with the Basic Law.

~ As the highest organ of state power, the NPC’s decisions on national security issues, which are essentially within the central authorities’ exclusive purview, enjoy supremacy over any other laws.

~ Since the legislation will be formulated and enacted in light of the HKSAR’s actual situation, it will be included in Annex III of the Basic Law according Article 18 of the Basic Law, and be implemented once it is promulgated by the SAR government.

Question 16: Does the NPC’s move violate the Sino-British Joint Statement?

Answer:

~ The Constitution and the Basic Law are the statutory basis for the Chinese government to govern Hong Kong. The fundamental principles regarding Hong Kong that the Chinese government expounds in the Sino-British Joint Statement are also stipulated in the Basic Law.

~ The NPC’s move is in full compliance with the Constitution and the Basic Law.

Question 17: Why is the proposed legislation only intended for Hong Kong but not Macao?

Answer:

~ Ever since Hong Kong and Macao returned to China, they have been incorporated into the national governing system. Safeguarding national security is a constitutional responsibility for both SARs. Treating both SARs equally, the central authorities have authorized them to legislate on their own to safeguard national security.

~ Macao legislated according to Article 23 of its Basic Law in 2009 and created a national security commission in 2018. Though Hong Kong reunited with the motherland earlier than Macao, it has not legislated according to Article 23, leaving a large loophole in national security.

~ The threat to national security in Hong Kong is getting more and more serious by the day, with signs of budding terrorism emerging. The central authorities are left with no choice but to take action to plug this loophole without delay.

Question 18: Some US politicians have threatened to sanction HK if the proposed  law is enacted. How should we make sense of this?

 Answer:

~ No foreign interference is allowed in the matter concerning the proposed national security legislation for Hong Kong.

~ No country in the world allows activities endangering national security to be carried out in its territory. China has never interfered when the US legislated against acts endangering national security in a litany of legislation. Since when has the US acquired the right to sanction Hong Kong for merely safeguarding national security?

~ By exploiting the national security loophole in Hong Kong, hostile forces have been indulging in acts of secession, subversion, infiltration, and sabotage, undermining national security and “one country, two systems”.

Question 19: Will the proposed national security law affect HK’s status as a separate customs territory and impede its economic ties with foreign countries?

Answer:

~ No. Hong Kong’s separate customs territory is granted by the WTO and ensured by the relevant provisions in the Basic Law. Such an internationally recognized status is not granted as a “favor” by any particular country nor can it be arbitrarily invalidated by a certain country.

~ Hong Kong’s status as a separate customs territory is rock-steady, as has been evidenced by the fact that more than 8,700 multinational companies have established their regional headquarters or offices in the city, over 20 trillion foreign investments have been made in the city, and more than 2,000 companies are listed on the city’s stock exchange.

~ It does not only benefit Hong Kong but also investors from all over the world, including those from the US, for the city to maintain its status as a separate customs territory and sustain its extensive economic ties with other countries and regions.

~ Take the United States as an example, it enjoys the largest trade surplus against Hong Kong; US companies make more than $30 billion in profit annually in the city; more than 1,300 US-funded businesses operate in the city. It is not in the interest of those American companies to reject Hong Kong’s status as a separate customs territory.

Question 20: Will the proposed legislation erode foreign investors’ confidence in HK, thereby having negative impact on its economic prominence and even leading to its decline?

 Answer:

~ In reality, social unrest has the most dampening effect on investor confidence.  Most countries and regions around the world have already enacted their own national security laws, and none of them have ever complained about a fall in investor confidence and economic activities when the relevant laws were enacted.

~ Investors always evaluate the potential investment environment for the next 5 to 10 years, including political and economic stability as well as the prospects of smooth operation and profitability in the long run. 

~ Riots and vandalism perpetrated by radical separatist groups and the opposition camp since June have not only severely damaged the rule of law, economy and livelihood of people in Hong Kong, but also left the business environment and international image of Hong Kong in tatters. Rating agencies have repeatedly downgraded Hong Kong’s credit ratings; and the city has lost its title as the world’s freest economy after holding it for 25 consecutive years. Some investors are already concerned about the unpredictable political landscape of Hong Kong in the future.

~ The proposed national security legislation is intended to quickly reverse this unfavorable situation, quell unrest, restore social stability, reinstate the rule of law, and mend the business environment. That will bring “one country, two systems” principle back on track.

Hong Kong's Tomorrow Concern Group

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