By Tu Haiming

Three years into its implementation, the National Security Law for Hong Kong (NSL) has helped restore social order and stability in the city, allowing it to refocus on socioeconomic development. People can now walk the streets without any fear of being harmed by rioters. Foreign investors have since made their way back to the city. This is indeed a sea change compared with the anarchistic chaos back in 2019. Despite these desirable outcomes, the European Parliament recently passed a resolution calling for the abolishment of the NSL as well as the release of those charged with and arrested for relevant offenses.

When lambasting the NSL, the European Parliament obviously ignored the fact that the NSL shares the same legislative principles as same-nature laws implemented in Western jurisdictions. The European Parliament’s call for revoking the NSL, therefore, is tantamount to subverting the legal foundation of its own national security regimes.

In drafting the NSL, the lawmakers drew on the judicial practices of many Western countries. Thus, the NSL’s legislative principles are consistent with those of Western ones, notably in the following aspects:

First, the NSL upholds international human rights standards. It incorporates provisions applicable to Hong Kong under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, striking a balance between safeguarding national security and protecting human rights.

Second, the NSL adheres to the fundamental principles of internationally recognized criminal laws and criminal procedures. For instance, nullum crimen sine lege (one cannot be punished for doing something that is not prohibited by law), presumption of innocence, due process, protection against double jeopardy, etc, are common-law principles that have been incorporated into the NSL, indicating that it respects internationally recognized legal principles and procedures.

Third, the extraterritoriality of the NSL is fully in line with the principles of international law, as well as international conventions and common practices. According to international law, territorial jurisdiction, personal jurisdiction and protective jurisdiction constitute the legal basis for exercising jurisdiction, and it is the last two that embody extraterritoriality. The national security laws of the US, the UK, Australia, Canada and member states of the European Union all uphold and exercise personal jurisdiction and protective jurisdiction to combat serious crimes committed abroad.

Fourth, the provisions of the NSL on “special rights, immunity, and facilitation” are in line with international practice. Article 60 of the NSL stipulates that “the acts performed in the course of duty by the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region and its staff in accordance with this Law shall not be subject to the jurisdiction of the Hong Kong Special Administrative Region”, not least because their powers fall outside the purview of the jurisdiction of the HKSAR. Such an arrangement is commonplace in national security laws in the West.

NSL similar to Spain’s anti-secession measures

When Catalonia, one of the 17 regions of Spain, declared “independence” on Oct 27, 2017, on the basis of an illegitimate “independence referendum” held on Oct 1, the Spanish government promptly, by invoking Article 155 of the Spanish Constitution, dismissed the Catalan Parliament, sacked the region’s leaders, and took over the region’s governance. Spanish authorities subsequently arrested a large number of senior Catalan officials on charges of sedition, treason and embezzlement of public money. Nine “separatist” officials were sentenced to nine to 13 years of imprisonment as a result.

Similarities are shared not only between the Catalan separatist movement and the “black-clad riots” in Hong Kong, but also between the legal means employed by Madrid and Beijing in dealing with the crises.

First, both Hong Kong and Catalonia are regional jurisdictions enjoying a high degree of autonomy, which, in the case of Hong Kong, is laid down in the Basic Law with clear provisions specifying the principles of “one country, two systems”, “Hong Kong people governing Hong Kong”, and the central government’s overall jurisdiction over Hong Kong. In the case of Spain, while the Spanish Constitution underscores Spain’s territorial integrity and indivisibility as a multiethnic nation, it allows different ethnicities and autonomous regions to form their own regional autonomous government.

Second, secessionists in Hong Kong and Catalonia challenged their own country’s constitutional order. Separatist forces in Hong Kong attempted to subvert the constitutional order prescribed by China’s Constitution and the Basic Law. They openly declared that “Hong Kong does not belong to China”, promoted “self-determination” or “city-state autonomy”, attempted to subvert the special administrative region government and colluded with external forces to endanger national security. With a similar agenda to sever Catalonia from Spain, separatists in the region defied the Spanish Constitution, manipulated public opinion and weaponized it against the central government.

Third, both China and Spain acted against separatism via lawful means. The NSL was promulgated in accordance with China’s Constitution and the Basic Law. It specifies four types of national security offenses along with their penalties, and holds anyone who has committed any of these offenses accountable. Spain brought Catalan secessionists to justice under laws on national security.

Whereas the US and European countries condemned Catalan’s subversive plot without hesitation and resolutely backed Spain in penalizing the culprits, they vehemently decried Beijing for taking action to safeguard national security. This is double standards in plain sight.

During his visit to Hong Kong in April, Xia Baolong, director of the Hong Kong and Macao Work Office of the CPC Central Committee, noted that “to safeguard national security is to protect ‘one country, two systems’, Hong Kong’s prosperity, development, democracy, freedom, human rights and the well-being of all Hong Kong residents, as well as the interests of all foreign and mainland investors in Hong Kong. Without security and stability, none of these can be ensured”.

There is a need for Hong Kong residents to fully appreciate the importance of national security from the perspectives of achieving the greatest common good and ensuring the foundation of Hong Kong’s stability and prosperity. It also behooves them to recognize the hypocrisy of Western politicians who have practiced double standards toward the NSL and national security regimes in the West.

The author is vice-chairman of the Committee on Liaison with Hong Kong, Macao, Taiwan and Overseas Chinese of the National Committee of the Chinese People’s Political Consultative Conference and chairman of the Hong Kong New Era Development Thinktank.

The views do not necessarily reflect those of Bauhinia Magazine.

Source: China Daily