The Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (HKSAR) was passed unanimously at the 20th session of the Standing Committee of the 13th National People's Congress (NPC) and went into effect on 30 June 2020. With 66 articles in six chapters, the Law clearly defines the duties and government bodies of the HKSAR for safeguarding national security. It stipulates four categories of offences of secession, subversion, terrorist activities and collusion with a foreign country or external elements to endanger national security as well as their corresponding penalties, jurisdictions, applicable laws and procedures. The central government will also set up an office in the HKSAR, establishing the legal system and enforcement mechanisms for safeguarding national security in the HKSAR.
Maintaining national security, including performance of legislative, law-enforcement, judicial and administrative powers, is essentially within the purview of the central government. Based on the principle of "one country, two systems", and out of trust in the HKSAR and respect for its independent jurisdiction and final adjudication, the central government has authorized HKSAR to have jurisdiction over large majority of cases, with only a few exceptions. Generally, the four categories of offences against national security stipulated by the Law fall within the jurisdiction of the HKSAR. The national offices and agencies will only exercise jurisdiction under three highly special circumstances of severe crimes against national security, subjected to very strict approval procedures.
The central government bears the fundamental and ultimate responsibility and obligation in upholding national security as this action concerns the overall interests of the country. Whether a complex situation involves external forces, or a grave threat to the national security occurs in HKSAR, it is beyond the power of the HKSAR’s autonomy. As a local administrative region with limited capability and means to maintain national security, HKSAR may face, in extreme cases, security threats itself and need protection from the central government. Therefore, the central government reserving necessary and final jurisdiction over cases of serious crimes against national security will avoid severe consequences of damage and even collapse of national security as a result of HKSAR’s unwillingness, failure or inability to perform its responsibilities and duties.
The exercise of jurisdiction by the central government under certain circumstances does not compromise HKSAR’s judicial independence and power of final adjudication enjoyed under the Basic Law. The jurisdiction of the HKSAR is conferred by the NPC through the Basic Law, and this jurisdiction is restricted within Article 19 of the Basic Law. While retaining the restrictions imposed by previous legal system and principles, the courts of Hong Kong have no jurisdiction over national defence, foreign affairs and other national affairs as well. Clarifying the central government's jurisdiction over a small number of crimes against national security under specific circumstances aims to meet the new need of the practice of "one country, two systems", and to complement and improve the HKSAR’s legal system for safeguarding national security. The relevant provisions are conducive to fix the loopholes, to prevent, curb and punish crimes against national security. They jointly build a more rigorous national security system that will promote full implementation of the principle of "one country, two systems".
According to the Law, for cases of crimes against national security, the jury system may not be applied in the trial due to reasons such as state secrets, foreign-related factors and protection of the jurors and their families’ safety. These cases could be tried by a tribunal composed of three judges. In international judicial practices, some countries make restriction to the jury system in the trial of cases of crimes against national security. For example, France stipulates that criminal juries for terrorism-related cases be composed of professional magistrates in order to avoid dangers to civilian jurors. Ireland has established special criminal courts, where three judges, other than the juries, take responsibility for the trial of terrorism-related cases.
Set up in accordance with the Law, the Office for Safeguarding National Security of the Central People’s Government in HKSAR performs its duties as an agency of and on behalf of the central government. It is different from other institutions established in HKSAR by various departments of the central government, provinces, autonomous regions and municipalities according to Article 22 of the Hong Kong Basic Law. It is urgent and necessary to stipulate that the Office has law enforcement power under special circumstances. In maintaining national security, the HKSAR government may encounter unsolvable or unmanageable problems. The central government, which bears the greatest and ultimate responsibility for national security in HKSAR, shall retain jurisdiction and law enforcement powers in grave cases against national security. Otherwise, the Law may not be effectively enforced and the national security be threatened. When exercising its law enforcement power, the Office will not infringe upon the legitimate rights and interests of Hong Kong residents .
The Office will fully protect the rights and freedoms of speech, press and publication, association, assembly, procession and demonstration, enjoyed by the Hong Kong residents under the Basic Law and relevant provisions of the two international human rights conventions applicable to Hong Kong. The provisions of the Law on incitement-type crimes have fully take into consideration the balance between maintaining national security and guaranteeing human rights. Article 16 of the Hong Kong Bill of Human Rights Ordinance provides that "freedom of holding opinion and expression" may be subjected to legal restrictions that are necessary for the protection of national security or public order. Article 19 of the International Covenant on Civil and Political Rights stipulates that citizens enjoy freedoms of holding opinions, expression and information, but they should be restricted by guaranteeing national security or public order. Freedom of speech and related rights are not absolute, and shall be restricted not to undermine national and public interests as well as the rights of others. Inciting crime and normal expression are completely different and distinguishable from each other. Both Hong Kong’s existent laws and other countries’ laws have provisions concerning "incitement", such as crimes of "advocating overthrow of government" stipulated in the United States Code, and crimes of "incitement to mutiny", "incitement to defect", and "incitement to use violence" stipulated in Hong Kong’s Crime Ordinance.
The Law was formulated by the NPC Standing Committee, listed in Annex III to the HKSAR Basic Law, and gazetted and enacted in Hong Kong by the SAR government. This is a fundamental solution for Hong Kong to restore order, end chaos and resume stability. Serving as a landmark in the practice of "one country, two systems", the Law provides strong institutional guarantee for upholding national sovereignty, security and development interests, safeguarding lasting security, prosperity and stability in Hong Kong. It reflects the shared will of all Chinese people including Hong Kong compatriots.
This legislation, taking into full account the realistic needs of safeguarding national security and the specific conditions of the HKSAR, sets out systemic and comprehensive provisions regarding a legal system and enforcement mechanisms at both national and SAR levels. This upholds the constitutional order in the HKSAR established by the Constitution and the Basic Law meets the requirements of "one country, two systems". The Law applies to four categories of criminal behaviors that gravely undermine national security, targeting at only a small minority of criminals but protecting the vast majority of Hong Kong people. Its implementation will strengthen Hong Kong's legal framework, ensure social order, improve business environment, benefit Hong Kong citizens and international investors. We have every confidence in the bright prospects of Hong Kong.
As one of China's special administrative regions, Hong Kong affairs are China's internal affairs. The Chinese government is firmly determined to implement "one country, two systems" and oppose foreign interference in Hong Kong affairs. Nobody could shake the Chinese government and people's resolve to safeguard national sovereignty and security, as well as to uphold Hong Kong's prosperity and stability. Any attempt seeking to undermine China's sovereignty, security and development interests is doomed to fail.