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Published: 18:15, January 25, 2023
NPCSC interpretation facilitates reflection on how NSL can be accurately implemented
By Tony Kwok
Published:18:15, January 25, 2023 By Tony Kwok

One of the significant consequences of the recent interpretation by the National People’s Congress Standing Committee on Articles 14 and 47 of the National Security Law for Hong Kong is that it has forced the Hong Kong Special Administrative Region to reflect more deeply on how best to implement the NSL in its entirety to ensure its accurate enforcement.

Since the NSL was enacted in June 2020, Hong Kong police have done a great job in enforcing the law, providing a strong deterrent in ending the city’s chaos and restoring law and order. Irrespective of how Western governments and the media have tried to demonize the NSL, it’s a fact the NSL had been instrumental in stopping the violent insurrection and was the “watershed” between riots and peace in the SAR. According to a local survey, 86 percent of Hong Kong residents agreed that the city has a constitutional responsibility to safeguard national security, while 75.7 percent of them were satisfied with the NSL’s implementation, showing that the law is heartily accepted by most Hong Kong people.

I would like to compare the challenge to national security with the fight against rampant corruption in Hong Kong in the 1970s under British rule. When the Independent Commission Against Corruption was set up in 1974, it focused on the arrests and prosecution of major corruption offenders in its first few years and claimed victory in eradicating syndicated corruption within three years.

ALSO READ: CE: NSL implementation must for 'one country, two systems'

Despite this milestone achievement, the fight was far from over. At that time, insufficient efforts were made to prevent corruption and promote public education about it. The case seems to be the same today. In hindsight, if the HKSAR had taken a more proactive approach in fighting corruption by enacting necessary local legislation to identify and plug the loopholes in national security, most likely, it would have found that the Legal Practitioners Ordinance, which allowed foreign lawyers to practice in Hong Kong, would be an obvious national security risk; and the SAR government would have amended the law appropriately before the issue went to the courts recently, putting our judiciary in a difficult position.

A more proactive strategy needed

The need for the city to adopt a more proactive strategy was further amplified in the speech by Xia Baolong, director of the State Council’s Hong Kong and Macao Affairs Office, at a recent symposium organized by the Chinese Association of Hong Kong and Macao Studies on ensuring the NSL’s accurate implementation in the SAR, emphasizing that under “one country, two systems”, the HKSAR has been granted adequate power and authority under the NSL, and should take every step possible to protect national security.

Hence, the first thing the HKSAR government needs to do now is to require the Department of Justice, in conjunction with all other government departments, to conduct a thorough analysis of their respective ordinances and areas of responsibility to identify possible national security risks, and take measures to amend the laws to align them with the overriding supremacy of the NSL and plug any systemic loophole in national security.

It should be noted that national security covers areas beyond spying and terrorism, such as cyber security, economic espionage and food safety. Thus, the SAR government should formulate a full list of national security threats for reference by various government departments.

ALSO READ: Xia: NSL serves in best interests of Hong Kong public

All law enforcement agencies should consider how they can assist in enforcing the NSL. For example, Section 10 of the Independent Commission Against Corruption Ordinance provides ICAC officers with the power of arrest. It specifies that when a separate offense is uncovered during a corruption investigation, as   specified in the list of offenses in its sub-section 2, such as theft, blackmail or deception, ICAC officers may continue to investigate such offenses, and make arrests if there’s reasonable suspicion. Since some national security offenses can be committed through bribery, such as theft of State secrets and the recent discovery of the case of a senior minister in Iran said to have been bribed by the United Kingdom to spy for the UK, the list of offenses in Sub-section 2 should be amended to include national security offenses as specified in the NSL. The ICAC should also proactively formulate strategies to prevent and detect corruption-related national security offenses. Likewise, the Customs and Excise Department should strengthen its legislation and operation procedures to deal with any smuggling activity related to national security.

Concerted efforts crucial to effective NSL implementation

It’s widely believed there’re still subversive civil servants working in various government departments, although many of them who were involved in the 2019 protests have now resigned for fear of being prosecuted. The Civil Service Bureau should also tighten up its appointments, discipline and dismissal system to eradicate internal security risks. At the same time, there should be more training to educate civil servants on their understanding of the NSL and their roles in helping to enforce the law. 

The Judiciary itself should now actively initiate a comprehensive internal review of how best it can fulfil its responsibilities, as required under Article 3 of the NSL, in effectively preventing and suppressing any activity that endangers national security, and mete out the necessary punishment. The costumes and wigs currently worn by Hong Kong judges make them appear like   foreign agents, and should be disposed of immediately.  

Most importantly, the NPCSC has clarified the leading and authoritative role of the Committee for Safeguarding National Security of the HKSAR. As Xia said, it’s every Hong Kong resident’s responsibility, not just the HKSAR government’s, to implement the NSL. The CSNS should take the lead in developing a comprehensive partnership strategy to get everyone involved in implementing the NSL, including the public, private and education sectors, as well as all district communities. Greater efforts should be made to promote public education through the media and schools. The message should be loud and clear. National security has an overriding position – above human rights -- in guaranteeing the nation’s peace and stability. Only when national security is ensured can citizens enjoy   freedom and human rights. More broadcasting of announcements of public interest should be shown on local television channels and social media to educate the public about national security, and urge residents to report any suspected national security offenses to the authorities.

Undoubtedly, there’re still many subversive elements in the community who are lying low and waiting for a suitable opportunity to hit back and bring harm to the HKSAR and the central government again. A comprehensive profile analysis should be conducted, based on the enforcement results of the 2019 riots, along with gathering intelligence to identify the most vulnerable areas, many of which are disguised under the names of different non-governmental organizations and agencies that act as foreign proxies.

As Chief Executive John Lee Ka-chiu pointed out in a recent newspaper interview, we must have sufficient systems to thwart risks posed by these agencies involved in espionage. The CSNS should speed up drafting legislation under Article 23 of the Basic Law to stop these subversive elements, and to ensure a complete firewall against any threats to national security.

In his upcoming 2023-24 budget, Financial Secretary Paul Chan Mo-po should set aside adequate funds for the CSNS to do its job, demonstrating the HKSAR’s top political commitments to national security.  

READ MORE: 'NPCSC interpretation key to accurate NSL implementation'

The additional funds should be used for greater international promotion efforts to counter Western countries’ demonization of the NSL. Hong Kong should also host global seminars on national security, inviting representatives from like-minded countries, as well as fair-minded academics, to participate. Our legal experts should attend more legal seminars overseas to tell Hong Kong stories well. The recent recruitment of a top Australian judge to join the Court of Final Appeal is certainly a good story to tell the world.

 

The author is an adjunct professor of HKU Space and a council member of the Chinese Association of Hong Kong and Macao Studies. He is an international anti-corruption consultant and former deputy commissioner of the ICAC.


The views do not necessarily reflect those of China Daily.


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