Although the Safeguarding National Security Ordinance (SNSO) is undoubtedly robust, it would be of little value if it did not cover all bases. It contains a comprehensive set of laws, which nicely complement the regime created by the National Security Law for Hong Kong (NSL) in 2020. With its enactment, the process of ensuring national security and the security of the Hong Kong Special Administrative Region is complete, and economic development can now be prioritized.
Although this has been widely welcomed within the country and by those elsewhere who wish Hong Kong to succeed, it has attracted hysterical criticism from some foreign powers. The SNSO, like the NSL before it, has been condemned by those who were only too pleased for Hong Kong to be China’s Achilles’ heel, and it is not hard to see why.
After 1997, Western politicians sought to exploit the city’s unique status in a way that was inimical to China. They saw Hong Kong as a place that lacked effective national security arrangements, and lent itself to the furtherance of their geopolitical objectives, including the frustration of China’s progress in world affairs. It is no coincidence that the foreign powers who are loudest in their criticisms of the SNSO are the same ones who encouraged the mobs as they tried to wreck the “one country, two systems” policy during the insurrection of 2019-20. They are also the countries that red-carpeted those responsible for the mayhem when they fled abroad, no matter the gravity of their crimes.
However, the Western countries have been confronted with a highly inconvenient truth. In many respects, the SNSO is milder than their own laws to protect national security, and in some areas its formulation was guided by their models. Although they have obsessed about Hong Kong’s national security arrangements, their comments owe nothing to rational analysis, and everything to point scoring at China’s expense. Their double standards cannot be explained in any other way.
Although, for example, human rights protections, including the International Covenant on Civil and Political Rights (ICCPR), are specifically incorporated into Hong Kong’s national security regime, they are invariably absent elsewhere. Anybody who, for example, searches the UK’s National Security Act 2023 or Australia’s Criminal Code counterterrorism laws for human rights protections will be sorely disappointed. Simply put, human rights have not been prioritized elsewhere in the way they have been in Hong Kong’s national security laws, and this they disregard.
Although the UK, for historical reasons, has led the charge in condemning the SNSO, it has failed, like the US and its other allies, to place its enactment in any proper context. If London were genuine, it would not have singled out Hong Kong in the way it has, while saying nothing about the far tougher national security regimes in the other Asian territories for which it was once responsible.
In Singapore, for example, the death penalty is still deployed, the ICCPR does not apply, jury trials have been abolished, and national security suspects face preventive detention of up to two years, which can be extended. Since Feb 5, moreover, national security prisoners in Singapore who are considered to pose an ongoing risk are not only disentitled to early release, but can be detained indefinitely after their sentences have expired. This would be unimaginable in Hong Kong, where a prisoner detained after completion of sentence would be entitled to seek freedom through a writ of habeas corpus.
Singapore’s situation is citable not for the purpose of embarrassing a great country, but to demonstrate the hypocrisy of those who malign Hong Kong. As Western politicians are keen not to offend Singapore, they disregard national security arrangements they would have decried had they arisen in Hong Kong. Insincerity apart, the only possible explanation for this is that they want to needle China and besmirch its global status, even if they harm Hong Kong’s standing in the process.
The extraterritorial reach of the SNSO (and the NSL) is another feature that has upset some foreign powers. It would, however, have been very strange if the legislation lacked this dimension, which is a defensive mechanism that promotes the effectiveness of national security regimes everywhere. Although it may be difficult to prosecute malign actors elsewhere who seek to harm Hong Kong and its officials, they can at least be put on notice that actions have consequences, and this serves the interests of deterrence. They will know that justice will forever have them in its sights, and they will spend the rest of their days looking over their shoulders.
Many countries have extraterritorial laws that apply not only to their own citizens but also to foreigners, often for crimes committed against their interests in foreign parts, but not exclusively so. Yet some of them are now criticizing Hong Kong for enacting similar laws for its own defensive purposes. Under the UK’s extraterritorial jurisdiction, for example, suspects can be prosecuted for sexual crimes that occur elsewhere, including crimes against children, and corrupt transactions in foreign places are also prosecutable. Both the UK Bribery Act and the US Foreign Corrupt Practices Act apply to their respective citizens irrespective of where they are located, as well as to foreigners within their own jurisdictions who engage in bribery and corruption. The UK’s National Security Act 2023 has an extraterritorial dimension, as also does its Terrorism Act 2006.
The United States, moreover, is currently seeking the extradition of the Wikileaks founder, Julian Assange, from the UK, on 17 charges related to the unauthorized disclosure of classified information considered detrimental to US national security, and it is relying on the extraterritorial reach of its Espionage Act 1917. Although, as his lawyers have explained, he is being prosecuted for engaging in ordinary journalistic practices of obtaining and publishing information in the public interest, the Western politicians who complain about “attacks” on press freedom in Hong Kong have suddenly lost their voices when it comes to Assange.
Assange is being pursued even though he is an Australian national, and notwithstanding his alleged crimes having occurred outside the US. He has been imprisoned in London’s infamous Belmarsh prison for over five years. His health has collapsed, and he is unable to follow the court proceedings in person or by video due to illness. It is extraordinary that the UK has countenanced this situation for so long, and that Australia has waited all this time before requesting the US to drop the charges against its national. After all, whenever they see something in Hong Kong they claim to dislike, particularly if it concerns media freedom or the lengthy detention of criminal suspects, they roar like lions, but when it occurs on their own turf or their allies’ turf, they are as silent as mice. It does not take a rocket scientist to work out why this is so.
The legal basis for the SNSO’s extraterritorial jurisdiction can be found in two well-established principles of international law. The “personality principle” enables a state to exercise jurisdiction over criminal acts committed by its citizens or residents outside its territory, and is used in the US, for example, to combat treason, unlawful disclosures and collusion with a foreign country. The “protective principle” allows a state to assert jurisdiction over any person whose conduct outside its boundaries threatens its vital interests, including its security or governmental functions. The protective principle, well known in the West, can be asserted without regard to where or by whom the act is committed.
In his text “International Criminal Jurisdiction” (2022), Professor Kenneth S Gallant explained how the protective principle, although now widely applied in the US, was traditionally directed at “crimes against the security of the state, such as espionage, or against its money or credit, such as counterfeiting”. And in the US, the courts have said that, under the protective principle, “a nation can adopt laws that make it a crime to engage in an act that obstructs the function of government or threatens its security as a state without regard to where or by whom the act is committed” (US vs Zehe, D Mass, 1985).
The personality and protective principles, therefore, are of great utility in ensuring national security, and have been deployed worldwide. In Australia, for example, they have been incorporated into the national security laws covering espionage and foreign interference. In Canada, they have been invoked for the offenses of espionage and treason.
Therefore, given their global usage, it should surprise nobody that the two principles have also been included in Hong Kong’s national security arrangements. Indeed, not to have done so would have been a dereliction of duty. However unpalatable it may be for the foreign powers who want to diminish China, Hong Kong now has an effective defensive system in place, which their intelligence agencies will find very difficult, if not impossible, to penetrate.
Therefore, operating from a secure base, Hong Kong can now concentrate upon promoting the welfare of its people, contributing to the progress of its motherland and facilitating global development. This will be welcomed by everybody who wishes the city well.
The author is a senior counsel and professor of law. He is a senator for life of the International Association of Prosecutors, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
