
If Hong Kong had enacted national security laws on its own, Beijing wouldn’t be stepping in
- Beijing trusted Hong Kong to implement Article 23, but its trust was misplaced. The Basic Law is a two-way street – it isn’t fair to accuse the central government of failing to comply with the mini-constitution when Hong Kong itself has not fulfilled its obligations
It was, therefore, remarkable that when the National People’s Congress enacted the Basic Law in 1990, it authorised the future Hong Kong Special Administrative Region to “enact laws on its own” prohibiting treason, secession, sedition and subversion against the central government, in Article 23.
This was a huge display of faith in Hong Kong, not least because national security concerns the entire country. It also showed Beijing’s awareness that if national security was dealt with regionally, it would, in keeping with the Basic Law’s underlying philosophy, help allay concerns over China’s resumption of sovereignty in 1997.

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While the culprits see violence as a means of advancing their political agenda, the Legislative Council, riven by strife, is unable to enact the laws that are necessary to protect Hong Kong.
Given the warning signs, it is vital that law enforcers have the tools they need before large-scale violence resumes. No country can tolerate terrorist-type activities on its soil.

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What is urgently required, therefore, is a subversion law, which criminalises conduct aimed at disestablishing, intimidating or overthrowing the central authorities by force or other illegal means, and prohibits associated terrorist acts; and a secession law, which criminalises activities designed to withdraw a part of the country by force or other criminal means.
Once enacted, the offences should be prosecutable in the usual way, with cases only proceeding to trial where the evidence suffices.
Under the Societies Ordinance, the secretary for security is able to control the activities of foreign political organisations. However, it is also necessary to criminalise organising or supporting the activities of any organisation proscribed on national security grounds.
Distrust of China has blinded Hong Kong to need for national security law
Anybody who colludes with foreign powers to damage Hong Kong, or hurt its officials, must also be placed within the reach of the criminal law.
In consequence, Article 18 now provides the only way forward. Once the NPC’s plan to prohibit acts of secession, subversion, terrorism and foreign interference has been enacted by its Standing Committee, the new law can, like other laws relating to defence, foreign affairs and matters “outside the limits” of Hong Kong’s autonomy, be placed in Annex III to the Basic Law.
To ensure that the new law can be promulgated immediately, its drafters will hopefully liaise closely with the Department of Justice and its law draftsman, who will need to ensure that its format complies with standard requirements, and that it is ready for use.
Although the national security law may not stop the fanatics or their foreign backers entirely, it should at least give them pause for thought. They will find it harder to use Hong Kong as a base for undermining the state. It will also hopefully help make Hong Kong a safer place in which to live.
Grenville Cross SC is a criminal justice analyst
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