[Temporality adapted from China Law Translate]
The draft HKSAR Law on the Preservation of National Security is divided into 6 chapters with a total of 66 articles: the General Provisions; the HKSAR’s Duties and Entities for Preservation of National Security; Crimes and Punishments; Case Jurisdiction, Application of Laws, and Procedures; the Central People’s Government’s National Security Bodies Stationed in the HKSAR; and the Supplementary Provisions. This is a comprehensive law with substantive, procedural, and organizational law content; and the draft primarily include the following content areas:
(I) Clearly provide that the Central People’s Government (CPG) has basic responsibility for matters of national security and for the constitutional responsibility of the HKSAR to preserve national security.
- The CPG has fundamental responsibility for national security matters relating to the HKSAR. The HKSAR bears a constitutional responsibility to preserve national security and shall perform its duty to preserve national security. The administrative, legislative and judicial organs of the HKSAR shall, in accordance with relevant laws and regulations, effectively prevent, stop, and punish conduct endangering national security.
- Preserving national sovereignty, unity, and territorial integrity is the common obligation of all Chinese people, including Hong Kong compatriots. Any institution, organization, or individual in the HKSAR shall abide by this Law and other laws of the HKSAR relating to the preservation of national security; and must not engage in activities that endanger national security. Residents of the HKSAR who run for election or assume public office shall sign documents in accordance with law to confirm or swear to uphold the Basic Law of the HKSAR of the People’s Republic of China and their loyalty to the HKSAR of the People’s Republic of China.
- The HKSAR shall complete legislation on preserving national security as provided in the Basic Law of the HKSAR as soon as possible, and improve relevant laws.
- The law enforcement and judicial [justice] organs of the HKSAR shall earnestly implement the provisions of this Law and the existing laws of the HKSAR on preventing, stopping and punishing conduct that endangers national security, to effectively preserve national security.
- The HKSAR shall strengthen efforts to preserve national security and prevent terrorist activities. The HKSAR government shall employ necessary measures to strengthen the oversight and management of schools, social organizations, and other matters related to national security.
(II) Clearly provide that the HKSAR shall comply with important principles of the rule of law in preserving national security.
- In preserving national security, the HKSAR shall respect and protect human rights, and shall lawfully protect the rights and freedoms enjoyed by Hong Kong residents, including freedoms of speech, press and publication, freedoms of association, assembly, procession and demonstration, in accordance with the Basic Law of the HKSAR and the relevant provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong.
- The principle of the rule of law shall be upheld in the prevention, stopping, and punishment of crimes endangering national security. Where the law provides that conduct is criminal, conviction and punishment are to be in accordance with the law; and where the law does not provide that conduct is criminal, it must not be convicted or and punishment. Prior to the judgment of a judicial organ, all persons are presumed innocent. Ensure the rights to a defense and other procedural rights lawfully enjoyed by criminal suspects, defendants, and other participants in the litigation. Any person who has already been found guilty or acquitted in final judicial proceedings must not be tried or punished again for the same conduct.
(III) Clearly provide for the establishment and completion of relevant institutions for safeguarding national security by the HKSAR and their duties.
- The HKSAR is to establish a National Security Commission (HK-NSC), responsible for matters on the preservation of national security in the HKSAR, bearing the primary responsibility for the preservation of national security, and accepting the oversight and accountability of the CPG.
- The HK-NSC is to be chaired by the Chief Executive with members including the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Commissioner of Police, the head of the police department responsible for the preservation of national security, the Director of Immigration, the Commissioner of Customs and Excise and the Director of the Chief Executive’s Office. The HK-NSC is to have a secretariat led by the Secretary-General. The Secretary-General is nominated by the Chief Executive and reported for appointment by the CPG.
- The duties of the HKSAR’s NSC are: To analyze and assess the national security preservation situation in the HKSAR, to plan related work, and to formulate policies for preserving national security in the HKSAR; to promote the construction of legal systems and enforcement mechanisms for preserving national security in the HKSAR; and to coordinate key efforts and major actions of the HKSAR for preserving national security.
- The HK-NSC is to establish a National Security Adviser (NSA) appointed by the CPG, to provide advice on matters related to the HK-NSC’s performance of its duties.
- The government of the HKSAR is to set up a department for the preservation of national security, equipped with law enforcement forces.
- The Department of Justice of the HKSAR Government is to set up a special department for national security crimes prosecutions, responsible for the prosecution of crimes endangering national security and other related legal affairs.
(IV) Clear provide for the four types of criminal conduct endangering national security and their punishment. The Draft’s Chapter III: “Crimes and Punishment” is divided into six sections, making clear provisions on the specific composition and corresponding criminal responsibility for four types of crimes: criminal separatism, crimes of subversion of state power, terrorist activities crimes, and crimes of colluding with foreign or overseas forces to endanger national security; as well as on other penalties and scope of effect. It distinguishes between different situations to separately provide punishments for the four types of crime.
(V) Clearly provide for case jurisdiction, the application of law, and procedures.
- Except in specified circumstances, the HKSAR is to exercise jurisdiction over the criminal cases provided for in this law.
- This Law and the local laws of the HKSAR apply to procedural matters such as opening cases and investigation, prosecution, trial, and enforcement of penalties for crimes endangering national security. The trials of cases of crimes endangering national security that are in the jurisdiction of the HKSAR are to be proceed conducted through procedures for public prosecutions.
- When handling cases of crimes endangering national security, the HKSAR government police department for the preservation of national security may employ the various measures that the extant laws of the HKSAR allow the police and other law enforcement departments to take when investigating serious crimes, as well as the related authority and measures provided for in this Law.
- The Chief Executive of the HKSAR shall designate a number of judges from among the currently serving or qualified former magistrates, District Court judges, judges of the Court of First Instance, judges of the Court of Appeal and judges of the Court of Final Appeal, and may also designate judges from among temporary or special judges, to be responsible for handling cases of crimes endangering national security.
(VI) Clearly provide for CPG bodies to be stationed in the HKSAR to preserve national security.
- The CPG is to set up an Office for the Preservation National Security (HK-NSO) in the HKSAR. The CPG’s HK-NSO is to lawfully perform duties for the preservation of national security and exercise relevant powers.
- The duties of the National Security Office (HK-NSO) in Hong Kong are: To analyze and assess the situation of the HKSAR in preserving national security, and to put forward comments and recommendations on major strategies and important policies for the preservation of national security; To oversee, guide, coordinate and support the HKSAR’s performance of its duties to preserve national security; to collect and analyze national security intelligence information; and to handle crimes endangering national security in accordance with law.
- The HK-NSO shall perform its duties strictly in accordance with law, lawfully accept oversight, and must not infringe upon the lawful rights and interests of any individual and organization. In addition to being required to follow national laws, the personnel of the HK-NSO shall follow the laws of the HKSAR.
- The HK-NSO shall establish coordination mechanisms with the HK-NSC to oversee and guide efforts on the preservation of national security in the HKSAR. The HK-NSO’s work departments are to establish coordination mechanisms with the national security law enforcement and judicial organs in the HKSAR, to strengthen information sharing and cooperation in actions.
The draft also makes clear provisions for case jurisdiction and procedures for the HK-NSO and relevant State organs in specified circumstances. It should be explained that the HK-NSO’s and relevant state organs exercise of jurisdiction in specified circumstances over an extremely small set of crimes endangering national security is an important manifestation of the central government’s overall power of governance, and is conducive to supporting and strengthening the HKSAR’ law enforcement and judicial efforts to preserve national security, and is conducive to avoiding the possibility of or the occurrence of emergency situations as provided for in Article 18, paragraph 4, of the Basic Law of the HKSAR.
In its supplementary provisions, the draft provides: Where the local laws of the HKSAR are inconsistent with this Law, the provisions of this Law apply; the Standing Committee of the National People’s Congress has the power of to interpret this Law.