Fifteen years have passed since the shelving of the National Security (Legislative Provisions) Bill by the HK government after mass protests. There have been no indications of when new legislative proposals might be introduced or the possible shape of such proposals. It is argued that, while the 2003 bill can serve as a starting point for thinking about a new law, important developments in Hong Kong, Macau, and Mainland laws also need to be considered. I propose a set of legislative guidelines based on the human rights and criminal law jurisprudence of HK’s highest court and identify relevant aspects of the Macau and Mainland national security laws that should be taken into account. The anti-terrorism law experience of other countries is also relevant as guidance on whether the proscription mechanism of 2003 should be reintroduced. Finally, the delineation of a proposed offence of secession is discussed in the context of recent debates on HK independence.
National security policies in the post-9/11 world reveal a dangerous turn towards the politics of fear, especially in the wake of frequent attacks by ‘home-grown terrorists’. Viewed from the prism of identity politics, particularly ethnonational pluralism, I take a three-pronged approach to examining the impact of national security policies on identity pluralism.
I interrogate the nexus between identity management and the rule of law in Hong Kong, evaluating laws and policies to assess conditions for social stability in light of the ongoing struggle for a distinctive Hong Kong identity, the imposition of a pan-Chinese identity and the marginalization of non-ethnic Chinese identities. I conclude with recommendations for a more nuanced consideration of the identity-integration-security-rule of law matrix to facilitate respect for plural Hong Kong identities as part and parcel of advancing rule of law and to harness plurality as a strength in national security strategies.
This paper considers the role of HK courts and common law administrative law principles in combating encroachments on HK’s rule of law from national security laws. The courts have two main roles. 1) Entrenching a position for themselves in the interpretation of Article 23. 2) Checking and balancing against the executive’s enforcement and implementation of the national security legislation. This paper identifies the ways in which the courts are likely to be engaged, including reviewing the constitutionality of the national security provisions and the enforcement acts. The discussion highlights how the court’s administrative review of the executive’s actions is likely to be the most effective site for a common law influence in the realm of national security. The avoidance of constitutional adjudication will be necessary for the courts to preserve their role in the arena of national security. This paper therefore suggests relocating the court’s role into the realm of administrative law.
Although Beijing likes to refer to HK as a “domestic” matter, international law is at the heart of HK’s constitutional order and must be considered in any attempt to implement Article 23 of HK’s Basic Law. I begin by reviewing HK’s status on the UN’s list of non-self-governing territories, which created a presumption that residents would exercise their right to self-determination upon decolonization. Although this did not occur, the Sino-British Joint Declaration can be viewed as providing a form of “internal self-determination,” a means of reconciling China’s territorial claims with HK people’s rights. I then consider how Article 23 can be implemented without violating international law. In addition to the Joint Declaration and the ICCPR, I also draw upon the jurisprudence of the ECtHR, the UN Human Rights Committee’s decisions and General Comment 34. This body of law shows it is possible to protect China’s legitimate security interests without violating HK people’s rights.