SAR in better position to leverage its advantages

In recent years, with the rapid evolution of the international situation and the highspeed development of technology, countries around the world, including common law countries like the United States, the United Kingdom and Singapore, have enacted or updated their laws concerning national security. In 2003, many Hong Kong residents were unfamiliar with the concept of national security, but today, Hong Kong society has reached a consensus that the city can no longer afford a further delay in the enactment of the Article 23 legislation. Apart from fulfilling a constitutional responsibility of the Hong Kong Special Administrative Region, the passing of the Safeguarding National Security Ordinance (SNSO), or the Article 23 legislation, was also an invaluable opportunity for Hong Kong to enact national security laws by way of the local legislative process based on common law principles. Furthermore, it definitely aligns with global trends. As an international metropolis, Hong Kong should not lag behind other common law jurisdictions in updating its statute books to cope with national security threats arising from a high-tech world as well as to safeguard the lives and properties of its residents.

When Article 23 legislation was discussed in the past, there were always two major views: One was to directly apply the Chinese mainland’s national security laws to Hong Kong through Annex III of the Basic Law; the other was to preserve the characteristics of Hong Kong’s common law. It is preferable to make Article 23 legislation part of Hong Kong’s local legislation by enacting it through the familiar legislative process of the Legislative Council, and all related cases will be adjudicated by Hong Kong courts based on common law principles. It’s important to note that no country would leave any part of its territory without national security protection, nor would any country normally authorize local governments to enact national security laws on their own. Hong Kong and Macao are privileged under “one country, two systems” to have an opportunity to pass national security laws on their own. Article 23 reflects the central government’s determination to uphold “one country, two systems” and Hong Kong’s common law system, and demonstrates its high degree of trust in Hong Kong. It gives Hong Kong the opportunity to legislate independently in accordance with common law principles; and after the legislation, the local legislation is entirely adjudicated by Hong Kong courts based on common law principles. We apply the principles of presumption of innocence, ensuring that no guilt is imputed without evidence, and a high threshold for conviction such as beyond reasonable doubt. Section 2 of the SNSO explicitly states that the implementation of the SNSO has to adhere to “one country, two systems”, the Basic Law, and the International Covenant on Civil and Political Rights (ICCPR).

The Basic Law and the Bill of Rights Ordinance clearly state that they protect Hong Kong residents’ rights to freedom of speech, peaceful assembly, procession and demonstration, as well as the application of the ICCPR. Article 19(1) of the ICCPR provides for various rights for citizens, while Article 19(3) stipulates that those rights are not absolute, and the government can enact laws to impose necessary restrictions to protect national security, public order, public health, and morals.

After World War II, many countries that had suffered from the war placed great emphasis on respecting the sovereignty of each country to maintain world peace. In 1984, the United Nations Judicial Committee issued the Siracusa Principles, which stipulate that when facing threats to national security, including threats to the safety of people’s lives and the integrity of national territories, further measures can be taken by a government to limit such rights.

To maintain world peace and respect all countries’ sovereignty and territorial integrity, international law clearly states that rights and freedoms must be regulated within legal boundaries, and may be subject to necessary restrictions required for protecting public order and national security as stated above. There are countless cases in common law that demonstrate such principles. Hong Kong residents who experienced the riots in 2019 understand that without comprehensive legislation to protect national security, their daily lives could be obstructed. The government and the legislature’s task is to balance individual rights and freedoms with the collective interest by introducing laws that best suit society. This is the role of every government and legislature on Earth. In drafting the Article 23 legislation bill, the HKSAR government extensively studied the practice of other major common law jurisdictions. After multiple amendments, the final draft addressed the questions raised by the Bills Committee, and fully complied with international standards and the rule of law.

The SNSO has made the legal boundaries clearer. Clearly defined laws can play a role in preventing behavior that endangers Hong Kong’s safety. Macao is a good example: A chaotic situation like what happened in Hong Kong in 2019 has never occurred in Macao; nor has the city brought any charges under its Article 23 legislation since its enactment in 2009.

The SNSO is in fact much more lenient than those of other common law countries, like the UK, the US and Singapore, and is completely in line with the Basic Law, common law, international law, and international standards. The SNSO protects the lawful rights and interests of both residents and businesses, local and international, and ensures a stable business environment. It should receive the respect and support of the international community.

With the SNSO in place, Hong Kong is in a better position to leverage the advantages of “one country, two systems” in future.

I truly hope that the international community can adopt an objective and fair view on the law.