Author: Tian Feilong (Associate Professor, School of Law, Beijing University of Aeronautics and Astronautics, China Hong Kong and Macao Research Association)
The National Security Law of Hong Kong completes all deliberations by means of “accelerating legislation” and comes into effect. This is a major event in the construction of the "one country, two systems" system, and it is also a significant increase in the overall rule of law.
The specific rule of law support for the central government's comprehensive governance
"One country, two systems" is a major constitutional innovation of China's peaceful reunification and modernization, an incremental mechanism of national sovereignty, security and development interests, and a fundamental institutional guarantee for Hong Kong's high degree of autonomy and democratic and free development. National security is the premise and foundation for the coordinated, balanced and orderly development of the relevant system values and goals of "one country, two systems", and the original intention of "one country, two systems".
Article 23 of the Basic Law of Hong Kong authorizes Hong Kong to make its own legislation to protect national security. It is the grant of power and the setting of obligations, and it is also a high degree of trust commensurate with a high degree of autonomy. However, since the return of Hong Kong 23 years ago, the local legislative work of Article 23 of the Hong Kong Basic Law has encountered increasingly difficult and severe political deadlocks. The patriotic power of ruling Hong Kong has been suppressed by both the internal and external systems. Local separatism beyond the constitutional bottom line has risen rapidly and external intervention The forces are pervasive, and the means of destruction are omnipotent. Hong Kong's self-government system is facing a squeeze from national security legislation loopholes, local color revolutions and external interference, and there has been a system security crisis. This crisis was initially revealed in the illegal “occupation of the middle” in 2014, and it reached its peak in the “storm of revision” in 2019. The Central People's Government seriously judges the dilemma of Hong Kong's governance and makes rational decisions on direct legislation.
On the agenda of the two sessions of the National Congress in 2020, Hong Kong’s National Security Law and Civil Code go hand in hand, becoming the highlight of the system of comprehensively governing the country according to law. The National Security Law of Hong Kong adopts a two-step plan of "People's Congress Decision + Specific Legislation", which organically integrates central governance and Hong Kong's autonomy on national security issues. It is specific to the comprehensive governance of the central government under "One Country, Two Systems" Rule of law support.
Has important leading and experimental significance
Hong Kong’s National Security Law is notable for its scientific and democratic nature. It is a statutory form that regulates and integrates “two systems” that are differentiated. It has taken an important step in exploratory legislation within the scope of central authority, and has explored the “one country, two systems” system. The specific experience of systematizing and governing Hong Kong by law has important guiding and experimental significance:
First, Hong Kong-related national security legislation is based on the security issues that the country is most concerned about and the most prominent protective needs that have emerged after the Hong Kong society experienced the "black storm" and "raising speculation". It adopts legislative decisions and specific legislation to top-down. Legal regulation is the rational legislation for comprehensive governance.
Second, Hong Kong-related national security legislation has achieved an organic combination of statutory criminal procedural principles and common law criminal norms. It reflects the progress of the country’s rule of law and the existing rule of law in Hong Kong in terms of basic principles, description of guilt, allocation of penalties, due process, and human rights protection. Standard respect is absorbed.
Third, Hong Kong-related national security legislation fully reflects "one country, two systems", highly respects, encourages and supports the status and role of Hong Kong's autonomy in the national security legal system, and does not replace the constitutional responsibility of Hong Kong to continue to complete the local legislative work of Article 23 of the Hong Kong Basic Law , Authorizing Hong Kong to exercise closed-loop jurisdiction over most national security cases, authorizing local Hong Kong to set up special law enforcement departments and appoint qualified judges.
Fourth, Hong Kong-related national security legislation still maintains a high degree of restraint in state power. It only regulates four criminal acts that endanger national security in Hong Kong, rather than enacting a large and comprehensive national security law. Institutional plan for Hong Kong residents with the least damage to freedom rights and the greatest protection benefits.
Fifth, Hong Kong-related national security legislation configures the National Security Agency in Hong Kong and the local National Security Commission for Hong Kong, establishes a dual-track law enforcement system, introduces a national security advisory system, and forms a more stringent law enforcement joint force system in Hong Kong’s national security law, with an organic law Normative and innovative.
Sixth, the national security legislation related to Hong Kong retains the direct jurisdiction of the central station in Hong Kong under special circumstances, which is very low in actual jurisdiction practice, but the system is extremely important, which reflects the central authority’s overall governance Jurisprudence also constitutes support for the fullness and completeness of Hong Kong’s law enforcement forces, ensuring that there are no dead ends and loopholes in the institutional capacity of national security law enforcement and jurisdiction, and an intermediate legal barrier to the constitutional order of the SAR can be established to avoid direct deterioration of the situation. The extreme cases of applying the emergency provisions of Article 18 of the Basic Law ensure the hierarchy and regulatory flexibility of the SAR’s legal order.
The key system of safeguarding the rule of law and human rights in Hong Kong
Hong Kong-related national security legislation has taken a key step by the central government as the “one country, two systems” basic legislator and ultimate guardian’s constitutional role, shaping the new era of “one country, two systems” system style and system appearance, helping Hong Kong society and the international community to better Understanding and trusting the constitutional wisdom of “one country, two systems” and the stability of the long-term system will also help the return of Hong Kong society and the repair and consolidation of the patriot’s social and political foundation, and maintain the overall system security of “one country, two systems” from multiple levels.
The special jurisdiction in the Hong Kong National Security Law and the system of appointment of chief executives are innovative systems, but they may also cause some controversy or even misunderstandings. Hong Kong courts belong to the local judicial system under "One Country, Two Systems", and their jurisdiction cannot be the same as the state, nor is it endless, but is determined by national legislation. The jurisdiction of the Guoan case, as far as it belongs to the central authority, should be the main jurisdiction of the central station. However, considering the understanding and acceptance habits of “one country, two systems” in Hong Kong, the central authority authorizes Hong Kong to administer most cases locally. Jurisdiction under special circumstances is reserved, and there are legal provisions specifying the applicable circumstances and decision procedures. In cases directly under the jurisdiction of the central agency in Hong Kong, the parties can obtain the procedural rights and due process guarantees provided by Hong Kong's National Security Law and relevant national criminal law. This jurisdiction distribution plan is already a high degree of respect and trust for Hong Kong’s autonomy, and there is no such problem as the central government’s infringement of Hong Kong’s autonomy and damage to judicial independence. As for the Chief Executive’s appointment of judges: on the one hand, the Basic Law stipulates that the Chief Executive has the power to appoint judges at all levels, which is also a rule of law in the world. There is no problem of administrative infringement of justice, but a reasonable constitutional check and balance; on the other hand, the appointment of the Chief Executive is not a new appointment Judges, instead of selecting judges suitable for Guoan cases from the existing judges based on loyalty and professional standards, form a "judge pool". As for how to assign judges, schedule procedures and even apply avoidance rules in which case, it is still in accordance with judicial independence The existing management mechanism. Those misunderstandings and even misunderstandings stem from the long-term opposition and stigmatization of the Hong Kong society, especially the opposition parties to the state system, rule of law and justice. They are also related to the deterioration and alienation of Hong Kong's education and social and cultural ecology. Therefore, the effective implementation of Hong Kong’s National Security Law must have a complete set of safety and law education, improvement of social and cultural soil, and understanding and approval of the people’s will.
In short, under the protection of Hong Kong’s national security law, Hong Kong’s riot control will be completed quickly, the rule of law and social order will be restored quickly, citizens’ free rights and a sense of security at the time of voting will be more protected, and global investors and talents will be more trusted The rule of law in Hong Kong and "one country, two systems". The National Security Law of Hong Kong is protective legislation that safeguards the rule of law and human rights of Hong Kong. It is legislation in the security field that is compatible with the legal systems of various countries in the world. It is a rational legislation that harmonizes national security with Hong Kong’s social security and personal security in terms of legal norms. The specific implementation of the law and the trial of cases will be an excellent window for the progress of the country’s rule of law and institutional civilization to be demonstrated in Hong Kong, and it will also become a key institutional starting point for the country to protect the freedom and democratic rights of most peaceful and law-abiding citizens in Hong Kong.
"Guangming Daily" (version 03 July 2020 03)