Catch-all national security law adds to Hong Kong worry

John Chan says a proposed Chinese security law requiring Hongkongers to safeguard national sovereignty must come with checks and balances to prevent abuse

PUBLISHED : Wednesday, 03 June, 2015, 2:33pm
UPDATED : Wednesday, 03 June, 2015, 2:33pm

Beijing's latest draft of a proposed national security law has raised concern in Hong Kong. Article 11 of the draft law obliges the people of Hong Kong, Macau and Taiwan to safeguard national sovereignty and territorial integrity, alongside their mainland compatriots. Article 36 of the draft calls on the Hong Kong and Macau special administrative regions to fulfil their responsibility of safeguarding national security.

Hong Kong is part of China, so it is natural that the SAR government should shoulder part of the responsibility to safeguard national security. No Hong Kong person would object to that. People are, however, concerned that imposing a duty on Hongkongers to safeguard Chinese sovereignty will conflict with the rights and protections currently enjoyed by the people of Hong Kong.

It is commonplace to find mainland legislation imposing a moral duty on citizens. In the marriage law, for example, adult children are exhorted to support and provide for their parents, even before such general principles were enshrined in a 2013 law on protecting the rights of elderly people.

By contrast, Hong Kong law is not concerned with moral duties; rather, it spells out a person's rights under the law, as well as the limits on them. While our laws reflect our moral standards, the laws themselves do not impose or enforce moral duty. Article 11 of the draft national security law is thus alien to what we are used to. The natural questions to ask are: what will Hongkongers be expected to do to fulfil that duty, and what will happen if we fail to do so?

Basic Law Committee vice-chairwoman Elsie Leung Oi-sie dismissed such worries by saying that Hongkongers will be consulted if the law is to be applied in the SAR, as it has to go through local legislation.

The new national security law will offer wider coverage than the previous state security law, enacted in 1993 (which was revised and renamed the counterespionage law last year), which was believed to be a response to the Tiananmen movement in 1989. The previous security law was mainly focused on protecting sovereignty, territorial integrity and the existing social system. The new law will, apart from oversight in the above areas, also cover issues such as security of the financial system, food safety, internet safety, environmental protection and nuclear safety.

Unlike the previous state security law, which specifies the penal codes for breaching the law, the draft law merely lays down the basic principles on national security. Article 81, for example, merely states that citizens who fail to perform their duties to maintain national security would be held legally accountable.

Hong Kong has close ties with mainland China, whether in term of trade and business, or people-to-people links.

What causes concern is that, given the wide coverage of the proposed national security law, Hong Kong people will not know whether they are stepping on the "landmine" of not honouring the duty to protect national sovereignty, as they go about their daily activities such as searching and posting material on the internet. They may, say, divulge financial information which mainland authorities consider a matter of national security.

Therefore, there must be sufficient safeguards against a wrong judgment, if not abuse by government officials, when applying the law.

Hongkongers - and their compatriots on the mainland - would like to see that there are sufficient checks and balances in place to ensure that mainland officials cannot arbitrarily raise the seriousness of a petty crime - if it were committed by someone the authorities did not like - to the level of endangering national security.

This is an important piece of mainland legislation affecting the rights of Hong Kong people. Hongkongers should keep a close watch on what finally comes out. In the meantime, they should vigorously voice their concern from Hong Kong's perspective.

John Chan is a practising solicitor and a founding member of the Democratic Party