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Following is a question by the Hon Cyd Ho and a reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (July 8):
Question:
It has been reported that the Standing Committee of the National People's Congress (NPCSC) adopted the National Security Law of the People's Republic of China (the new national security law) last week, and Article 11(2) and Article 40(3) therein make reference to the Hong Kong Special Administrative Region (SAR), stipulating that the residents and government of the SAR have a "shared obligation" identical to that of Mainland residents regarding national security. This is the first time that the Mainland adopts such an approach for enacting legislation. Some local journalism organisations have pointed out that the reference to the SAR in the new national security law runs counter to the principle of "one country, two systems", and the definition of "national security" in the new national security law far exceeds the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, seriously infringing the freedom of expression of the public. Those organisations have also pointed out that in the event that this law is passed, if people commit acts in the SAR which are not in contravention of Hong Kong legislation but in breach of the new national security law, such as chanting slogans on putting an end to one-party dictatorship, the mainland authorities may take law enforcement actions against them under the new national security law upon their entry into the Mainland. In this connection, will the Government inform this Council:
(1) whether it has assessed how the aforesaid two Articles will be enforced in the SAR following the passage of the new national security law; whether the SAR Government can confirm that it will not enact legislation on Article 23 of the Basic Law in response to the passage of the new national security law; as some journalism organisations have pointed out that the offences involving "national security" in the new national security law are beyond the scope of those acts that the SAR should enact laws on its own to prohibit under Article 23 of the Basic Law, whether the SAR must adopt the definition in the new national security law in defining "national security";
(2) whether it has any plan to conduct studies on the impact of the new national security law on the SAR, as well as collect and relay to NPCSC the views of Hong Kong people; if it does, of the details and timetable; if not, the reasons for that; and
(3) as some journalism organisations have pointed out that under Article 77 and Article 78 of the new national security law, mainland citizens must proactively cooperate with state organs in their investigations related to national security and provide leads, whether it has assessed, given the provision on "shared obligation", if the requirement for Hong Kong people to discharge the obligation described in those Articles runs counter to the principle of placing the onus of proof on the prosecution under the common law practised in Hong Kong, and also to the principle of "one country, two systems"; if it has, of the findings; whether the SAR Government will relay the concerns of the aforesaid journalism organisations to NPCSC?
Reply:
President,
My consolidated reply to Hon Ho's question is as follows:
Adopted at the Fifteenth Session of the Standing Committee of the Twelfth National People's Congress on July 1 this year, the National Security Law (NSL) has a wide scope encompassing 11 areas, including political security, homeland security, military security, cultural security, technology security and so forth. In seven chapters, the NSL makes provisions for the duties and responsibilities in respect of safeguarding national security, national security system, national security protection, obligations and rights of citizens and organisations, etc..
There are two Articles under the NSL in which Hong Kong is mentioned, namely:
"Article 11(2): 'It is the shared obligation of all Chinese people, including the compatriots in Hong Kong, Macao and Taiwan, to safeguard national sovereignty and unity as well as territorial integrity.'
Article 40(3): 'Hong Kong Special Administrative Region and Macao Special Administrative Region shall fulfill their responsibility of safeguarding national security.'"
Hon Ho asks how these two Articles will be applied in the Hong Kong Special Administrative Region (HKSAR). The Vice-Chairperson of the Legislative Affairs Commission of the Standing Committee of the National People's Congress (NPCSC), Zheng Shuna, explained at a press conference on July 1 that national laws, except those listed in Annex III to the Basic Law (BL), were not applied in the HKSAR. The Vice-Chairperson also stated that the HKSAR and the Macao SAR, as inalienable parts of the People's Republic of China, are local administrative regions directly under the Central People's Government (CPG) with a high degree of autonomy, and that according to the provisions of the Constitution and the BL, the SARs have the responsibility to safeguard national security. It is therefore necessary to require in principle the two SARs and the compatriots in Hong Kong and Macao of the responsibility of safeguarding national security, and such a requirement is consistent with the provisions of the Constitution and the BL. She further said that the NSL also makes provisions in principle for the discharge by the Hong Kong and Macao SARs of their responsibility to safeguard national security. She pointed out that Article 23 of the two BLs of Hong Kong and Macao respectively has also provided that the SARs should enact laws on their own to safeguard national security.
In a statement issued on the same day, the HKSAR, upon noting NPCSC's adoption of the NSL, indicated that the law in question would not be applied in the HKSAR. As pointed out in the statement, the HKSAR has the responsibility to safeguard national security, and it shall be fulfilled by local legislation in accordance with the provisions of Article 23 of the BL (BL 23). The current-term Government has no plan to enact laws in respect of BL 23. In response to media questions on the same day, the Chief Executive reiterated that the NSL, as adopted by NPCSC, would not be applied in Hong Kong. As part of the country, Hong Kong has the responsibility and obligation to safeguard national security, and this is to be done by local legislation in accordance with the provisions of BL 23. The current-term Government has no plan to enact laws in respect of BL 23.
Given that the NSL is not to be applied in the HKSAR, and that the current-term HKSAR Government has no plan to enact laws in respect of BL 23, there is no need on the part of the HKSAR Government to conduct a study or an assessment on the scope of the NSL, the definition of "national security", and individual provisions of the NSL. Reiterating in the NSL the HKSAR's constitutional responsibility to safeguard national security is in line with the provisions of the State's Constitution and the BL, as well as the actual circumstances of the HKSAR.
President, since Hong Kong's return to China, the CPG and the HKSAR Government have been acting strictly in accordance with the BL. According to BL 18, national laws shall not be applied in the HKSAR except for those listed in Annex III to the BL. NPCSC may add to or delete from the list of laws in Annex III after consulting its Committee for the Basic Law of the HKSAR and the Government of the HKSAR, and only after going through this process can a national law be applied in Hong Kong. In addition, laws listed in Annex III to the BL shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of HKSAR as specified by the BL.
Furthermore, it is stipulated in BL 22 that no department of the CPG and no province, autonomous region, or municipality directly under the CPG may interfere in the affairs which the HKSAR administers on its own in accordance with the BL. If there is a need for departments of the CPG, or for provinces, autonomous regions, or municipalities directly under the CPG to set up offices in the HKSAR, they must obtain the consent of the Government of the HKSAR and the approval of the CPG. All offices set up in the HKSAR by departments of the CPG, or by provinces, autonomous regions, or municipalities directly under the CPG, and the personnel of these offices shall abide by the laws of the HKSAR.
Since Hong Kong's return to China, the HKSAR Government has been maintaining connections with the CPG and other Mainland departments while strictly observing the BL and the principle of "one country, two systems". Contacts or communication will be made with relevant officials as and when necessary. As far as law enforcement is concerned, law enforcement agencies of the HKSAR and those of the Mainland have mutual respect of each other's authority and responsibility. Law enforcement officers of the two sides do not take enforcement actions in their counterpart's jurisdiction. Law enforcement actions can only be conducted by local law enforcement agencies in accordance with the local law.
The HKSAR has the responsibility to safeguard national security, which is to be fulfilled by local legislation in accordance with the provisions of BL 23. Given that the legal system of the Mainland is different from that of Hong Kong, there will be better alignment and interface with the circumstances and legal system of Hong Kong if the subject concerned is taken forward under the laws of Hong Kong. I therefore consider it appropriate for the HKSAR Government to handle the work in question under the legislative framework of BL 23.
While introducing legislation under BL 23 has always been the constitutional responsibility of the HKSAR, the current priorities of the HKSAR Government are social and livelihood issues and the current-term Government has stated clearly on many occasions that it has no plan to enact laws in respect of BL 23. The Government understands the concern of the general public over the enactment of legislation under BL 23. In case legislative exercise is to be taken forward in the future, the HKSAR Government will fully consult various sectors of community for a general consensus on the legislative proposals.
Thank you, President.
Ends/Wednesday, July 8, 2015
Issued at HKT 17:53
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