Hong Kong is the only place on Earth that does not have a proper national security law in its statute book. No country would allow separatists to endanger their national security, nor allow foreign powers to conspire with local separatists to overthrow the central government. But this is exactly what has been happening in the last 23 years after the reunification. The opposition parties colluded with foreign powers, notably Washington, to exploit our legal vacuum to create political and social unrest for almost a year, thereby eroding our rule of law and affecting many citizens’ livelihoods and personal safety. It is thus clear that the only purpose of the national security law is not to tighten the human rights and freedoms of Hong Kongers as alleged by the opposition politicians and activists, but to put an end to the destructive unrest and restore the stability and prosperity of Hong Kong. The central government’s decision to plug this loophole should therefore be welcomed by all law-abiding citizens who just want to get on with their lives.
There is concern that the law, to be drafted by the Standing
Committee of the National People’s Congress (NPCSC), might not meet the
standard of common law as practiced in Hong Kong. I am optimistic that this
should not be a problem. Thorough research must have been conducted in the last
23 years both by the HKSAR government as well as the think tanks of the central
government, such as the Chinese Association of Hong Kong and Macao Studies.
There are plenty of references one can take from the national security laws of
the other common-law jurisdictions such as the United States, the United
Kingdom, Canada, Australia and Singapore, as well as Macao, which introduced
the law as early as 2009 and has not experienced any problems as some Hong
Kongers feared it would.
However, having the law is not enough. There must be an effective enforcement mechanism to back it up, which explains the draft decision of the NPC on “establishing and improving the legal system and enforcement mechanisms for Hong Kong to safeguard national security”.
Upon the passing of the law, which is expected to be imminent, police should promptly re-establish the Special Branch (SB) to work closely with the National Security Bureau (NSB). To enhance its intelligence and operational capability, they should adopt the successful practice of the then-SB in the colonial era in at least two aspects — i.e., the obtaining of interception of communication warrants, and the availability of a longer detention period for arrestees. After 1997, the authority for interception warrants was vested with the judiciary. But as all national security cases are highly sensitive, the SB should obtain the warrants from the chief executive instead for operational efficiency, similar to the colonial practice, when such warrants were obtained directly by the SB from the governor. Secondly, the current practice of 48 hours of maximum detention is clearly not sufficient to follow up on any such arrests, and this is why the then-SB had a special detention center in Mount Davies. It is also the standard practice of most Western countries to allow for longer detention on national security cases; the US’ Guantanamo Bay detention center is known for holding prisoners for years. In Singapore, the arrestees for national security offenses can be detained without trial for up to 12 months.
There are plenty of references one can take from the national security laws of the other common-law jurisdictions such as the United States, the United Kingdom, Canada, Australia and Singapore, as well as Macao, which introduced the law as early as 2009 and has not experienced any problems as some Hong Kongers feared it would. However, having the law is not enough. There must be an effective enforcement mechanism to back it up, which explains the draft decision of the NPC on “establishing and improving the legal system and enforcement mechanisms for Hong Kong to safeguard national security”
In addition, it should be clearly stated in the law that the court is not permitted to allow bail in all national security cases, especially those involving terrorism. This should end the preposterous practice of some judges in Hong Kong granting HK$1,000 ($129) cash bail for suspected terrorists in possession of explosives and bomb-making materials.
As the enforcement of national security law must be the statutory responsibility of the NSB, there is no reason why it cannot play a role in the enforcement of the new law in the HKSAR, especially in cases involving a serious threat to the central government. However, if the Hong Kong police force should prove itself adequate to the task, there should not be any need for the NSB to become overtly involved in its enforcement. The latter should just focus on intelligence gathering and a close operational liaison with our police. Having said that, there may be exceptional cases that threaten national security and that justify the NSB’s taking direct action. In such cases, it is proposed that it could exercise arrests only upon written authorization from the procurator-general of the Supreme People’s Procuratorate. Such a practice is similar to the Independent Commission Against Corruption, in which certain major corruption cases, such as those involving Section 10 of the Prevention of Bribery Ordinance targeting corrupt civil servants possessing excessive assets, can only be prosecuted upon the personal fiat of the secretary for justice.
To maintain the integrity of our rule of law, all national security cases should be tried in local courts. However, a special national security court should be set up, consisting of only Chinese judges with no foreign passports, and the same criteria should apply to the subsequent appellate courts.
In addition, the new law can provide a comprehensive system of disqualification of candidates and members of the Legislative Council and District Councils. We have seen numerous members of the newly elected district councils openly advocating Hong Kong independence. This blatant illegal advocacy must be nipped in the bud. In the future, all candidates seeking elective office should be required to swear an oath of allegiance to the central government, and of compliance with the Basic Law as well as the national security law. Any infringement should render them disqualified either to stand for election or even after being elected. All related judicial reviews should be taken up only by this special court tried by Chinese judges.
It is evidently clear that the mobile phone and social media are the main tools and channels through which the rioters conduct their operations. They also lend themselves to the spread of false news. In due course, in the interest of national security, all mobile phones and SIM cards should be registered and traceable, similar to the practice of many other countries such as Japan.
With the proposed national security law, the hostile foreign media are again baying about “the end of Hong Kong”, just as they did prior to the handover and were proved wrong. I suggest they should wait until the publication of the new security law by the NPCSC and compare it with similar legislation in the US, UK, Canada, Australia and Singapore. In the US, the maximum sentence for its violation is the death penalty, and life imprisonment in the UK. I am confident that it will be very reasonable and far less draconian than most comparable legislation in the leading Western democracies. As far as how Hong Kongers should see it, Arthur Li Kwok-cheung, a member of the Executive Council, has this to say: “There is nothing for Hong Kong people to worry about … unless they are revolutionaries, terrorists, or those colluding with foreign powers.”
The author is an adjunct professor of HKU Space, and a
council member of the Chinese Association of Hong Kong and Macao Studies. He is
a former deputy commissioner of ICAC and currently an international
The views do not necessarily reflect those of China Daily.
HONG KONG NEWS