[Ming Pao] Johannes Chan: Do NPC's Draft Resolutions Comply with Basic Law?

HKU Chair Professor of Public Law Johannes Chan: Do NPC's Draft Resolutions Comply with Basic Law?
Translated by John C., edited by Karen L., written by Johannes Chan Man-mun
Original: https://m.mingpao.com/ins/%e6%96%87%e6%91%98/article/20200525/s00022/1590332595169/%e4%ba%ba%e5%a4%a7%e6%b1%ba%e8%ad%b0%e8%8d%89%e6%a1%88%e6%98%af%e5%90%a6%e7%ac%a6%e5%90%88%e5%9f%ba%e6%9c%ac%e6%b3%95-%ef%bc%88%e6%96%87-%e9%99%b3%e6%96%87%e6%95%8f%ef%bc%89 

The current draft resolution of the National People’s Congress (NPC) mandates the Standing Committee of the National People's Congress (NPCSC) to enact the National Security Law in Hong Kong. Here we are to explore whether this draft resolution complies with the Basic Law. Perhaps, it is, to some people, a self-explanatory case that needs no further clarification. Yet, as long as China intends to maintain the integrity of the rule of law, and the NPC inclines to abide by the law, but not to override it, the legislation shall not violate the Basic Law. Such is the seriousness of this subject.

There are at least 5 points to indicate why the draft resolutions of NPC do not comply with the Basic Law under the jurisprudence context.

The Basic Law Article 23 Clearly Specifies HKSAR ‘Shall Enact Laws on Its Own’

The then-proposed Basic Law Article 23 designates Hong Kong Special Administrative Region (HKSAR) ‘shall enact laws on its own’ when it comes to National Security legislations, namely that HKSAR shall enact laws according to the tradition of common law and its own legislative process. Given that Hong Kong and mainland China have separate legal systems, values, and legal concepts, the principle of the Basic Law is to allow HKSAR itself to enact laws with relevance to personal liberty and criminal liability for any highly political and sensitive situations. It should be noted that laws relating to the matter of national security have always been considered highly sensitive, and ‘shall enact laws on its own’ serves the precise purpose of protecting the completeness of the HKSAR’s common law. 

There were lots of concerns in the Hong Kong society when the Basic Law article 23 was being drafted, especially to the vague concept of national security in mainland China: the ‘counter-revolution’ charges on Wei Jingsheng were still very fresh in people’s mind as he was sentenced to 15 years’ imprisonment simply because of his speech yearning for democracy. ‘Shall enact laws on its own’ in Article 23 was then established under this historical background.

Some people suggested the possibility of coexistence between the National Security Law and the Article 23 in attempt to justify the legitimacy of the NPCSC's decision, to which they might not notice that it poses a challenge on the meaning of the presence of an Article 23 (‘shall enact laws on its own’). It's like a father giving a child $10 to buy whatever sweets he likes, but then decides to take away $4 and asks him to get chocolate, while at the same time telling the child he isn't breaking his promise to let the child make his own decision. It is in Hong Kong's duty to legislate an Article 23, but it does not inherently support the idea that NPCSC can enact laws for Hong Kong directly.

Article 18s ‘Generic Power’ Shouldnt Extend to Article 23

Some leap to a hasty conclusion that there is no conflict between self-legislation and the implementation of national laws in Hong Kong, whereas this is a blatant violation of the general principles of legislative interpretation. Article 18, as a generic law, allows NPCSC to apply certain national laws in Hong Kong through Annex III, while Article 23, as a concrete law, specifies that laws within its scope shall be enacted by Hong Kong itself. Under the general principles of interpretation, concrete provisions are superior to generic provisions. Thus, the generic power in Article 18 shall not extend to the legal provision stipulated in Article 23. Otherwise, Article 23 would be superfluous.

Furthermore, Article 18 Annex III is only applicable in national laws, to which some people irresponsibly claimed that they refer to all the laws passed by NPC or NPCSC, but not the ones passed by provinces and municipalities. This, under normal circumstances, could be a reasonable interpretation, but not under in Article 18. The 'national laws' in Article 18 Annex III must be relevant to national defense, foreign affairs, and outside of the sphere of autonomy. While the drafting of such national laws has not been within the power of provincial and municipal districts, national laws should be dependent on the nature of the law being applicable nationwide rather than which political body is responsible for the drafting. Under the Basic Law, Hong Kong legislature is vested with legislative power: Article 23 requires the laws within the scope of the article should be enacted by Hong Kong itself; Article 18 states the central government could apply laws related to national defense, foreign affairs, and outside of the sphere of autonomy to Hong Kong. The combined purpose of these laws and articles is to illustrate clearly that only when the matter concerned is of ‘national defense, foreign affairs, and outside of Hong Kong autonomy’ will the central government pass laws for Hong Kong. On top of that, the laws should be applicable to Hong Kong and nationwide, hence, to secure and protect different legal systems in Hong Kong and in mainland China. Thus, the central government shall not enact laws for Hong Kong under these legal conditions.

Some may argue that the Garrison Law is a precedent for the central government to enact laws specifically for Hong Kong, but they must have missed this: People’s Liberation Army Hong Kong Garrison is the key stakeholder of the Garrison Law. This article declares the responsibility of PLA personnel in Hong Kong, which is not an applicable article to the general public in Hong Kong. This time, the NPCSC's enactment of the National Security Law in Hong Kong is against the human rights and freedom of Hong Kong people, and these are what the Basic Law is meant to protect.

Constitution Article 31 & 62 Do not Empower the NPC to Disregard the Basic Law

NPC’s draft resolution on the Nation Security Law refers to its legal basis in Article 31 & Article 62 (Item 2, [13] and [15]) of the Constitution of the People’s Republic of China. Article 31 of China's Constitution Law is the legal basis of establishing Special Administrative Region (SAR), and Article 11 of the Basic Law clearly states that the SAR’s system, protection of freedom, legislative and judicial system are all based on the Basic Law. The Basic Law Article 11 is applicable on the NPC as well—NPC’s decision ought not to contravene the provisions of the Basic Law. In Article 62 of China's Constitution Law, item 2 refers to the NPC’s power ‘to supervise the enforcement of the Constitution’; Item [13] refers NPC’s power ‘to decide on the establishment of special administrative regions, and systems to be instituted there’; Item [15] refers NPC’s power ‘to exercise such other functions and powers as the highest organ of state powers should exercise’. These generic provisions do not empower NPC to disregard the Basic Law. True, it is within the NPC's power to propose amendments on the Basic Law—abolishing the provisions on ‘shall enact laws on its own’ stated in Article 23 and conferring NPC the power to legislate directly for Hong Kong—but it involves following certain procedures, not by mere decision.

The Unsettling Future of the Courts' Role

Some worrying view suggested that the NPCSC’s scope of legislation does not completely overlap with Article 23. In the NPC’s drafted resolution, NPCSC is authorised to legislate on ‘acts that seriously threaten national security, such as secession, subversion of state power, and organising terrorist activities, as well as foreign and overseas forces interfering affairs of HKSAR’. These are quite vague in scope, which could potentially cause impacts on financial, economic, and network communication, on the links between religious groups and their foreign counterparts, on the cooperation between local NGOs and foreign NGOs, on the cooperation between universities and foreign organisations, etc. As the lines that divide national security and civic rights blur, what is to be done if NPCSC passes laws that are conflicted with the protection of human rights in the Basic Law? Can the courts in Hong Kong declare that the laws passed by NPCSC shall be revoked due to the violation of the protection of human rights in the Basic Law?

What's more distressing is the role of the Courts. According to the Basic Law Article 18, provisions in Annex III shall relate to national defense, foreign affairs and outside of Hong Kong’s autonomy. All these matters are outside of the scope of the Hong Kong Courts' power of review. Unless the laws that NPCSC enacts specifically authorise the Hong Kong Courts the power of review on the matters, the Courts in Hong Kong may not have jurisdiction over cases of this kind. Even if Hong Kong Courts were to have the power of review, how would they interpret this national law? The way how mainland China drafts and interprets law is disparate from the principle of the common law. Mainland’s legal interpretation is primarily based on political consideration over legal provisions. From NPCSC's conversion of the oath-of-office requirement in the Basic Law to the eligibility for election to the Liaison Office reinterpretation of 'mainland government departments' in Article 22, mainland’s stance on legal interpretations is manifest.

I, for 100%, believe that the courts in Hong Kong will not adopt the mainland-China way to interpret or execute the Hong Kong National Security Law. However, another question arises: what if the Hong Kong courts’ interpretation of the law is not in line with that of NPCSC? Precisely, if the Hong Kong courts narrow the scope of related offence in the law in order to protect human rights, or consider certain charges as violating the protection of human rights under the Bill of Rights or the Basic Law, would NPCSC applaud or interfere? 

Beijing has time and again blasted the judgement by the Hong Kong courts, including the severe criticism on the Court of First Instance’s judgement on Emergency Regulation Ordinance. Can NPCSC intervene arbitrarily if the Hong Kong courts’ judgement is contrary to NPCSC's stance of legislative intent? Moreover, NPCSC has the power of interpretation for the Hong Kong National Security Law since it is a national law. While it is still in doubt whether such interpretation has any restrictions on the Hong Kong courts, it is possible for the Courts to bypass the NPCSC’s interpretations on the law in reality?

Establishing New Agency of National Security in SAR Do not Comply with the Basic Law

In the NPC’s draft resolution, the Central People’s Government is given permission to establish certain agencies that are related to national security in SAR, to fulfil the duty of safeguarding national security in accordance with the law. So, what exactly is this agency? It is feared that this state agency does not fall into the category of the Central Government’s 'department' in Article 22, and is thus not subject to Article 22, which only adds to more uncertainty: what power do these state agencies have? And under what supervision? Can the agency exercise the right of investigation, right to arrest, and right of interrogation in Hong Kong? The Ministry of State Security in mainland China is known to have a very wide range of power with little transparency; how does it comply with the Basic Law by allowing state agencies to carry out law enforcement activities in Hong Kong?

The Oppression Will Only Aggravates

In just a few weeks, the Liaison Office declared that it is not, in the ordinary sense of words, a ‘department of the Central People’s Government’, whilst having the power to supervise the implementation of the Basic Law. What followed was the Education Bureau pressured Hong Kong Examinations and Assessment Authority (HKEAA) to delete a question on the HKDSE history paper due to political grounds. After that, the Communication Authority (CA) ruled The Headliner, a satirical TV programme produced by RTHK, for breaching the Broadcast Code of Practice, and afterwards a direct law enactment for Hong Kong by Beijing. This series of moves naturally makes one wonder how much more autonomy is left in Hong Kong.

In retrospect, some people think: had the legislation on Article 23 passed, the present situation would not have arisen. Wishful thinking it is. There are many factors causing the current disheartening situation. Years ago, ex-Premier Wen Jiabao enjoined the then HKSAR government to deal with the deep-rooted conflicts in Hong Kong, but rather the government ignored it and stirred up the troubles, aggravating the inner conflicts. Fast forward to today, the self-opinionated government pays no heed to public opinion, and has missed the opportunities to resolve social conflicts over and over. Nonetheless, added with the ongoing trading and political contest between China and the US, this is how today's situation has become what it is. Even if the legislation on Article 23 were passed, the nowadays conflicts and clashes would be inevitable due to the clumsy handling of the most recent two governments. To most Hong Kong people, the now major issue concerns social order, and has nothing to do with national security.

To Beijing, however, whatever happens is always plots and conspiracies organised by external forces (i.e. foreign countries). Instead of holding successive SAR governments to account, it inclines to escalate the issues to the level of national security, and even adopts the approaches which will demolish ‘One Country Two Systems’. Is Beijing’s decision, at what degree, based on alarmist’s talk and people’s act of adding fuel to the fire? It is probably all down to the judgement of history. 

At the end of the day, the power lies with Beijing: such issues will not be resolved after NPCSC's passing of the National Security Law. It will be only followed by a series of prosecutions, suppressions, and restraints, with a view to turning Hong Kong into a submissive society where no one thinks and dares to question authorities. Possibly, in Beijing’s eyes, what 'One Country Two Systems' stands for is merely allowing two economic systems in a country—not enabling a civil society with independent thoughts or values that would question those with power. After all these, Hong Kong’s public freedom will be narrower and narrower with overwhelming stress of political correctness at all times. The high degree of autonomy will then exist in name only. History has taught us a lesson: oppression will only aggravate, and will never enlighten. This is an elegy of 'One Country, Two Systems'.

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