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June 23, 2020

HONG KONG/CHINA: National security law likely to be enacted by July

BY Gabriel Wildau

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( 5 mins)
  • China’s legislature is poised to use an expedited process that enabling to enact the new Hong Kong National Security Law (NSL) by the end of June.
  • An official summary of NSL offers new detail about the expanded powers granted to the Hong Kong and mainland governments, though some important details remain uncertain.
  • The Hong Kong and mainland governments will use the law to suppress the protest movement, while seeking to minimize the impact on the business and investor community.

An expedited legislative process

The National People’s Congress Standing Committee (NPCSC) reviewed a draft of the NSL at its regularly scheduled meeting on 18-20 June. The committee then agreed to convene a special session on 28-30 June, at which the NSL is likely to be reviewed for a second time; formally adopted; and added to Annex 3 of the Basic Law, Hong Kong’s mini-constitution. The NPCSC has completed a full draft of the law, but the commission only released a partial summary. Media reports indicate that the draft law will not be submitted for public comment, and the full text may be available only after final passage.

We previously forecast that the NSL would receive a second review and final passage in August, but the plan for a special session this month is highly unusual and changes this forecast. The NPCSC normally meets every two months, and the committee has not held two sessions so close together in over two decades. The official agenda for the special session does not include the NSL, but the list of agenda items includes the Chinese character for “et cetera,” hinting that the NSL could be added to the agenda at the last minute – just as it was for the meeting just finished.

The special session will allow the parliament to expedite passage of the law while respecting the legal requirement that new laws receive two or three NPCSC legislative reviews before final passage. The expedited timeline would allow final passage by 30 June, the eve of the 23rd anniversary of the handover of Hong Kong from British to Chinese rule.

Contents of the law

The legislative summary, though incomplete, reveals significant new details of the NSL, which consists of six chapters. Chapter one outlines general principles, including a requirement that the Hong Kong government protect freedom of speech, freedom of the press, freedom of association, and other rights protected in the Basic Law. Prosecutions of national security crimes must respect “rule-of-law principles” such as the presumption of innocence, the right to counsel, and the protection of defendants against prosecution for actions that were not yet illegal at the time the actions were committed.

Chapter two establishes new institutions in the Hong Kong government, notably a Commission for Safeguarding National Security. The commission will be chaired by the chief executive and composed of nine other senior Hong Kong government officials, with the central government appointing one additional member. The Hong Kong police and Department of Justice will also each establish new national security units.

Chapter three establishes four new national security crimes: secession; subversion of state power; terrorism; and collusion with foreign or external forces to endanger national security. This section of the official summary seems to be heavily redacted, but the structure of chapter three suggests that these four crimes are each defined in significant detail, leaving less room for prosecutorial discretion than do the corresponding statutes in mainland criminal law. Detailed definitions would partly assuage concerns that the law will grant prosecutors broad powers to punish a wide variety of political activity, but since the summary omits this detail, the degree of specificity in the law itself remains uncertain.

Chapter four outlines procedures for enforcement and prosecution. Hong Kong courts will have jurisdiction over national security cases – except in “specified circumstances” that remain undefined (at least in the legislative summary). The Hong Kong chief executive has the power to select the pool of judges eligible to hear national security criminal cases, and media reports indicate that this power will also allow the chief executive to choose the presiding judge for specific cases.

Chapter four also empowers the police department’s new national security division to take measures allowed under current law for the investigation of “serious crimes.” In addition, media reports indicate that the law may permit indefinite detention of national security crime suspects in special holding centers, in contrast to current Hong Kong law, which allows police to hold suspects for no longer than 48 hours in most circumstances before being released or brought before a magistrate.

Chapter five establishes a new central government agency in Hong Kong, known as the Office of the National Security Commissioner, with authority to “supervise, guide, coordinate, and support” the Hong Kong government in safeguarding national security. The office also has authority to “collect and analyze national intelligence.” This central government’s main intelligence agency, the Ministry of State Security is likely to operate the new office in Hong Kong, though other mainland agencies could also participate. This office is the institution that will have jurisdiction over national security cases in “specified circumstances,” as described above. Officials in this office must follow both mainland and Hong Kong law, but mainland law will take precedence in case of a conflict.

Chapter six includes supplementary provisions. One of these specifies that if the NSL conflicts with Hong Kong law, the NSL will take precedence.

Implications for Hong Kong

Overall, the legislative summary matches expectations that the law will grant Beijing significant new powers to suppress at least certain kinds of political activism and protest activity. Much still depends on enforcement, however. The summary reinforces our view that authorities are likely to enforce the law in a way that minimizes the impact on foreign business and investors.

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