Hong Kong Journalists Association, International Federation of Journalists and Independent Commentators Association welcome the public consultation for the People’s Republic of China National Security Law(draft)(Second reading draft)( hereafter new National Security Law) announced by the Standing Committee of National People’s Congress. These three organizations believe that the public consultation is an important step towards improving this law and resolving doubts. It is also an advancement towards democratization and transparency of the legislative process.
We are concerned that new National Security Law makes direct mention of Hong Kong Special Administrative Regions (hereafter “Hong Kong”), which raises suspicion among Hong Kong people. We thus put forward the following comments.
New National Security Law makes two references to Hong Kong:
Article 11: Citizens of the People’s Republic of China, all state organs and armed forces, all political parties and mass organisations, enterprises, public institutions and organisations, all have the responsibility and obligation to maintain national security.
The sovereignty and territorial integrity of China cannot be divided. Maintenance of national sovereignty and territorial integrity is a shared obligation of all the Chinese people, including compatriots from Hong Kong, Macau and Taiwan
Article 36: All levels of local People’s congress and standing committees of people’s congresses at the county level or above to ensure compliance with and enforcement of national security laws and regulations within own administrative regions.
Local People’s governments at all levels to follow laws and regulations to manage national security work in that administrative region.
The Hong Kong Special Administrative Region, and Macau Special Administrative Region shall fulfill responsibilities for the maintenance of national security.
From the wordings, Article 11 imposes individual responsibility on Hong Kong residents, while Article 36 imposes responsibility on Hong Kong government. We suggest:
Deleting the two paragraphs concerning Hong Kong completely, that is deleting Article 11(2) and Article 36 (3).
Even if the Central government insists that HK & Macau Governments should shoulder responsibility for national security, Article 36 (3) should still be amended as follow:
Hong Kong Special Administrative Region to maintain National Security in accordance with its own Basic Law.
The reasons are as follows:
1. The issue of maintenance of national security by Hong Kong Special Administrative Region is already regulated by the Basic Law. There is no need to reiterate it in new National Security Law.
2. Article 11(2) mentions Hong Kong’s “shared obligation”. According to Article 42 of the Hong Kong Basic Law, “Hong Kong residents and other persons in Hong Kong shall have the obligation to abide by the laws in force in the Hong Kong Special Administrative Region”. This is the only article in the Basic Law mentioning the obligation to be borne by Hong Kong residents. In other words, Hong Kong residents do not need to comply with obligations imposed by the Constitution of China on Chinese citizen. This includes the duty to “safeguard the unity of the country and the unity of all its nationalities” (Article 52), to “safeguard the security, honour and interests of the motherland” (Article 54), and so on. The Basic Law does not require Hong Kong residents, or Chinese citizens among Hong Kong residents, to fulfill such obligations on the safeguarding of national sovereignty. Due to the incompatibility of Article 11(2) of the Basic Law, the paragraph concerned should be removed.
3. When the Basic Law was formulated, the Chinese government’s concept of national security focused on the traditional areas of national security (for example sovereignty, unity, territorial integrity). New National Security Law covers a much wider scope than this traditional concept, and includes political, economic, cultural, social, religious and other areas. These non-traditional contents will touch on specific institutions and policies, and under the principle of “One Country Two Systems”, will cause lots of differences of opinion to arise between Hong Kong and the mainland. To avoid causing unnecessary conflicts and worries, it should be reaffirmed that Hong Kong should follow the spirit of the Basic Law.
4. According to a literal reading of Article 36 as it is currently drafted, Hong Kong government must bear the same responsibility on national security as mainland local governments. This is inconsistent with the original intent of “One Country Two Systems”, and will cause doubts and fears among Hong Kong residents. For example, under the pressure of “maintaining national security”, Hong Kong government may be forced:
To outlaw organisations which are currently legal in Hong Kong, but illegal in mainland;
On immigration policies, to adopt mainland policies restricting the entry and exit of specific persons;
To surrender to the Central government sensitive information belonging to the Hong Kong Special Administrative Region Government, or personal information of sensitive persons among residents of the Special Administrative Region;
In line with the brand new concept of “cyberspace sovereignty” in Article 26 of New National Security Law to introduce corresponding measures in Hong Kong;
In line with the provisions of Article 20 and 22 of New National Security Law, to stamp out activities regarded as “negative culture” or “cult organisations”, etc.
This would make the responsibility of the Hong Kong government on national security identical to that of other local governments on the mainland. This is a violation of the original intention of “One Country Two Systems”. Therefore it is necessary to make appropriate amendments to make any references to Hong Kong more in line with the provisions of the respective Basic Law.
We hope that the above opinions might be accepted.
Deputy General Secretary
International Federation of Journalists (IFJ)
Hong Kong Journalists Association (HKJA)
Independent Commentators Association (ICA)