Illustration: Craig Stephens
by Ronny Tong
by Ronny Tong

Distrust of China has blinded Hongkongers to Beijing’s intent in pushing a national security law for Hong Kong

  • The draft decision, when passed, will initiate the long-delayed passage of a Hong Kong law to safeguard the nation from subversion and foreign interference. It comes after months of violent unrest and challenges to state power that have worried Beijing

Is there a right to undermine the safety and territorial integrity of your own country? Put the question this way, and few people in their right mind would say yes. But if you ask: is there a right to insist on your political beliefs even if it means the destruction or disintegration of communist China, a lot of people would jump up and say yes!

So it should surprise no one that the draft decision put forward last Friday during the third session of the 13th National People’s Congress to introduce a national security law for Hong Kong was met with strong condemnation both within and outside Hong Kong.
US Secretary of State Mike Pompeo said immediately that the resolution was a “ death knell” for Hong Kong’s freedoms. Opposition leaders in Hong Kong announced “the death” not just of “one country, two systems” but also the rule of law. And they have not even seen the proposed legislation.
First, let’s get one thing straight: no freedom is above national security. The International Covenant on Civil and Political Rights makes that plain. The rights under Article 12 (right of movement), Article 13 (right to remain in a place), Article 14 (right to an open trial), Article 19 (right of expression and of the press), Article 21 (right of peaceful assembly), and Article 22 (right of association) of the covenant are all expressly stated as subject to legal restrictions on the grounds of national security.

It follows that the mere fact of the enactment of a national security law cannot be said to be an erosion of individual rights, let alone the rule of law.

It is important to see the resolution for what it is. It is a decision empowering the NPC Standing Committee to legislate. It is not a piece of legislation. The first three points of the draft are basically political rhetoric.


New law will ‘prevent, stop and punish’ activities endangering national security

New law will ‘prevent, stop and punish’ activities endangering national security

The fourth point speaks of the basic duties of the Hong Kong government in protecting the safety of the nation. It then goes on to say that, “according to necessity”, the relevant institutions tasked with safeguarding national security would set up branches in Hong Kong to protect national security according to law.

Critics pointed to this sentence to say that mainland law enforcement agencies would descend on Hong Kong and arrest whomever they like (or dislike, presumably), then ship them back to the mainland to be tried. This is the same fearmongering tactic they used last year to discredit the proposed amendments to the extradition law. There is not a scrap of evidence that what they say is true.

It’s 2003 all over again in Hong Kong. Will we pass the test?

Firstly, the decision says “according to necessity”. There will be no necessity if the SAR government does its job properly.

Secondly, it is noteworthy that the vice-chairman of the NPC Standing Committee, Wang Chen, in his explanation of the draft resolution, took pains to reiterate the importance of the special administrative region’s high degree of autonomy, the various systems safeguarded by the Basic Law and, in particular, the supremacy of the rule of law in Hong Kong.

Thus, even if there was a necessity for mainland institutions to be set up in Hong Kong, the enforcement of any national security law would still be left to the local police and, most importantly, the Hong Kong judiciary.

The fact is that, once the national security law is added to Annex 3 of the Basic Law, it will become part of the law of Hong Kong and will be interpreted, applied and enforced as such in accordance with the principles of the common law, as guaranteed under Articles 8, 18, 81, 84, 85 and 86 of the Basic Law.

In other words, all the safeguards of our common law judicial system, including the right of defence, open trial, right of silence and presumption of innocence, will still apply.


Hong Kong democrats bash national security law from China’s two sessions, US also voices concern

Hong Kong democrats bash national security law from China’s two sessions, US also voices concern

The fifth point of the draft decision talks of the chief executive’s duty to report periodically to the central government on national security. I would be very surprised if the chief executive is not already doing this. It is hardly a matter that should worry anyone, insofar as rights and freedoms in Hong Kong are concerned.

The sixth point identifies the four main categories of behaviour the legislation will target, namely secession, subversion of state power, organised terrorism, and foreign interference in Hong Kong affairs. At this stage, it is not clear whether the reference to secession and subversion of state power overlaps with similar references in Article 23 of the Basic Law. However, Wang made it clear that it remained the duty of the SAR government to legislate under Article 23.

Wang pointedly noted that, more than 20 years after the handover, no progress had been made to enact Article 23. Meanwhile, riots over the past year and the rise of violence and terrorism, not to mention the push for separatism, suggests the risk to national security and territorial integrity is at an all-time high. In these circumstances, the central government must act.


Tear gas fired as thousands protest Beijing’s planned national security law for Hong Kong

Tear gas fired as thousands protest Beijing’s planned national security law for Hong Kong

This is, of course, not a wholly satisfactory state of affairs and one hopes that, in due course, this issue of apparent constitutional conflict can be properly resolved; but this temporary difficulty does not mean that “one country, two systems” will end.

It is no exaggeration to say the saddest thing about Hong Kong is that every incident involving mainland China is used daily as an excuse to announce the death of Hong Kong and its rule of law.

Everything is seen through coloured political glasses. Every nefarious intention is attributed to every action of the central and SAR governments. There is an ocean of distrust not just of both governments, but also with regard to “one country, two systems” and of our judiciary, which is highly regarded around the world.

While some distrust is perhaps inevitable, given our history and the inherent conflict of “one country, two systems”, the all-encompassing distrust held by some in Hong Kong – and elsewhere – is not easy to comprehend.

The draft decision serves as another alarming example that, if we really want to see “one country, two systems” work, we must cast aside this distrust and consider the facts instead of unfounded prejudice. Can we not do just that?

Ronny K.W. Tong, QC, SC, JP, is a former chairman of the Hong Kong Bar Association, a member of the Executive Council and convenor of the Path of Democracy

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