UGCP1002 Hong Kong in the Wider Constitutional Order

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course “UGCP1002 Hong Kong in the Wider Constitutional Order”. No part of this transcript
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Transcript of the video lecture of Professor Jiang Zhaoxin

National Security in the Wider Constitutional Order

Law as Safeguard: General Principles of HKNSL

Introduction

Hello, everyone. In the previous lectures of this course, Professor Lau Siu-kai has explained in
detail the strategic significance of the “One Country, Two Systems” and the protection of
national security in Hong Kong as a strategic goal. Dr. Maria Tam’s lecture also clarified the
legitimacy and importance of Hong Kong’s national security law. In the preceding lesson on
“Constitution and National Security”, it was pointed out that the definition of “national security”
in countries around the world is constantly expanding, and they all adopt a “whole-of-
government approach”. China’s holistic view of national security is similar to that of the United
States and the United Kingdom in maintaining national security, and they all use various means
to strengthen the national security capacity of the country. Among them, maintaining national
security through the construction of the legal system is an important aspect of this effort. We
will see that Hong Kong’s legal system for safeguarding national security is centered on the
Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong
Special Administrative Region (2020) (HKNSL) and the Safeguarding National Security
Ordinance (2024) (National Security Ordinance), is an integral part of the efforts of the Chinese
state and the Hong Kong Special Administrative Region (HKSAR) to safeguard national
security through legislation.

This lesson will lead you to understand Hong Kong’s legal system and basic principles for
safeguarding national security in greater detail. We will look at the background of Hong Kong’s
legal system for safeguarding national security and its significance from a comparative
perspective with reference to other countries’ national security laws and from the perspective
of international geo-political rivalry.

First of all, I will introduce the legal basis and basic principles of the HKSAR’s legislation to
safeguard national security, as well as the institutional system established upon the legal system
to safeguard national security. This will allow you to understand the main contents of the “Hong
Kong National Security Law” and the “Hong Kong National Security Ordinance.” Next, to
further understand the content generally covered by the national security law, I will introduce
the National Security Act of 1947 of the United States and the National Security Act of 2023
of the United Kingdom. I will also introduce the national security institutions and the expanding
national security legal system based on US national security legislation.

In 2020, under its own national security legal system, the United States declared a national
emergency in response to the legislation of the Hong Kong National Security Law and used this
as a reason to sanction China and the Hong Kong Special Administrative Region. Considering
the action of the US to impose sanctions on China, including Hong Kong, it is easier to see the
difficulty of achieving a national security law through local legislative procedure and its
meaning in various aspects. Thus, to a large extent, not only does the “Hong Kong National
Security Law” serve the function of establishing institutions internally, but it also has the
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function of external defense. Therefore, the maintenance of national security in Hong Kong has
continual and long-term constitutional significance.

The content of this lesson consists of the following six parts:

1. Steady and long-term and stable development of the “One Country, Two Systems”: the
purpose and basis of national security legislation
2. Law as safeguard: the legal principles that Hong Kong should abide by in safeguarding
national security
3. The Institutional System established by the Hong Kong National Security Law
4. A comparative perspective: US National Security Act in 1947 and UK National Security
Act in 2023
5. Challenge and Response: US National Emergency and Safeguarding National Security in
Hong Kong
6. Conclusion

1. Steady and Long-term Development of the “One Country, Two systems”: the
Purpose and Basis of National Security Legislation

1.1 The Enactment of Hong Kong National Security Law

Let’s start with the establishment and enactment of the “Hong Kong National Security Law” in
2020.

On June 30, 2020, the Law of the People’s Republic of China on Safeguarding National
Security in the Hong Kong Special Administrative Region (referred to as the “Hong Kong
National Security Law”), which was made and passed by the Standing Committee of the
National People’s Congress, took effect in the Hong Kong SAR. The Hong Kong National
Security Law consists of six chapters and 66 articles.

Chapter I General Principles (Articles 1-6)

Chapter II The Duties and the Government Bodies of the Hong Kong Special
Administrative Region for Safeguarding National Security
Chapter III Offences and Penalties (Articles 20-39)
Chapter IV Jurisdiction, Applicable Law and Procedure (Articles 40-47)
Chapter V Office for Safeguarding National Security of the Central People’s Government
in the Hong Kong Special Administrative Region
Chapter VI Supplementary Provisions (Articles 62-66)

The following day, on 1 July 2020, Shen Chunyao, Director of the Legislative Affairs
Commission of the Standing Committee of the National People’s Congress, explained: “The
key term ‘Safeguarding National Security in the Hong Kong Special Administrative Region’
has three levels of meaning, which we should pay attention to:

“First, the Hong Kong Special Administrative Region itself must maintain national
security in accordance with the law, which is a constitutional obligation.

The second is to maintain national security in the Hong Kong Special Administrative
Region, but it is not limited to the Hong Kong Special Administrative Region itself;
maintaining national security in the Hong Kong Special Administrative Region needs
to follow the principle of ‘One Country, Two Systems,’ which will be different from
maintaining national security in other places in China.
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The third is that the Central People’s Government bears the overarching
responsibility for national security affairs relating to the Hong Kong Special
Administrative Region.” What is the overarching responsibility? It is the supreme
responsibility, the ultimate responsibility, and the complete responsibility.

According to Professor Wang Zhenmin, former Dean of the Tsinghua University

Law School, national security matters are within the power of the central government;
matters related to the power of the central government can be exercised directly by
the central government or the Hong Kong Special Administrative Region can be
mandated by the central government to handle them. The establishment and
improvement of the legal system and enforcement mechanism for the Hong Kong
Special Administrative Region to safeguard national security at the national level just
reflects the central government's overarching responsibility for national security
affairs relating to the Hong Kong Special Administrative Region.

Also, according to the view of the former Secretary for Justice of Hong Kong, Teresa
Cheng, which was published in 2020: “The Hong Kong National Security Law is a
unique and pioneering piece of national law because it combines three main types of
law, namely, ‘organisational law’ which establishes the relevant responsible
authorities, ‘substantive law’ which sets out offences and penalties, and ‘procedural
law’ which relates to law enforcement, prosecutions, and trials. Although the Hong
Kong National Security Law is a national law enacted by the Standing Committee of
the National People’s Congress (NPCSC), it also takes into account the differences
between the legal systems of the State and the HKSAR, and many of its provisions
are designed to deal with the interface, compatibility, and complementarity between
the Hong Kong National Security Law and local laws. The common purpose of these
two features is to ensure that the laws on safeguarding national security can be
practically and effectively enforced in the SAR.”

From this point of view, the “Hong Kong National Security Law” is, first and foremost, a
national law of China, establishing a system for the central government and the SAR to maintain
national security in the Hong Kong Special Administrative Region. This law embodies the
overarching responsibility of the central government to maintain national security in the SAR
for the sake of all Chinese people. This law also protects the authority and the legitimacy of the
Hong Kong SAR government and its people to safeguard China's national sovereignty, unity,
territorial integrity, and other major national security interests in accordance with the law.

In short, the “Hong Kong National Security Law” is a legal protection for maintaining China’s
national security.

1.2 The Enactment of the Hong Kong National Security Ordinance

Now, let’s turn to the second section about the promulgation of the Hong Kong National
Security Ordinance in 2024.

According to the Hong Kong Basic Law:

“The Hong Kong Special Administrative Region shall enact laws on its own to
prohibit any act of treason, secession, sedition, subversion against the Central
People’s Government, or theft of state secrets, to prohibit foreign political
organizations or bodies from conducting political activities in the Region, and to
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prohibit political organizations or bodies of the Region from establishing ties with
foreign political organizations or bodies.”

It is very clear that Article 23 of the Hong Kong Basic Law requires that legislation be enacted
against seven types of offences against national security. The Hong Kong National Security
Law (2020) only legislates against the offences of secession and subversion as stipulated in
Article 23 of the Hong Kong Basic Law. The Hong Kong National Security Law (2020) does
not cover the other five offences mentioned in Article 23 of the Basic Law of Hong Kong.
Therefore, it is necessary for the HKSAR to enact legislation on its own in order to create a
complete legal system for safeguarding national security.

On 19 March 2024, the Hong Kong National Security Ordinance was read for the third time
and passed by the Legislative Council of Hong Kong, and it was implemented on 23 March. It
is one of the longest laws enacted by the Legislative Council of the HKSAR, comprising 190
provisions. It specifies amendments to 28 relevant laws existing in HKSAR.

There are 9 parts in the structure of the Hong Kong National Security Ordinance:
1. Preliminary
2. Treason, etc.
3. Insurrection, Incitement to Mutiny and Disaffection, and Acts with Seditious Intention, etc.
4. Offences in connection with State Secrets and Espionage
5. Sabotage Endangering National Security, etc.
6. External Interference Endangering National Security and Organizations Engaging in
Activities Endangering National Security
7. Enforcement Powers and Procedures in Legal Actions, etc., in connection with
Safeguarding National Security
8. Mechanisms for Safeguarding National Security and Relevant Protections
9. Related Amendments

According to Professor Albert Chen Hung-yee, a senior constitutional law scholar at the
University of Hong Kong, one major constitutional significance of the enactment of the Hong
Kong National Security Ordinance lies in the fact that “the enactment of the National Security
Ordinance in March 2024 marked the completion of the construction of the ‘One Country, Two
Systems’ legal order in Hong Kong. ‘One Country, Two Systems’ must involve both ‘One
Country’ and ‘Two Systems’. Article 23 of the Basic Law is an important embodiment of the
‘One Country’ principle, as it requires the HKSAR to legislate to protect the overall national
security of China. As long as the legislation of Article 23 was not completed, the legal order of
‘One Country, Two Systems’ remained incomplete.” This is the opinion of Professor Albert
Chen Hung-yee.

In other words, the enactment and implementation of the Hong Kong National Security
Ordinance not only signifies the establishment of a legal system safeguarding national security
in the HKSAR, but also indicates that the construction of the “One Country, Two Systems”
legal order was only completed and fully established in 2024. From this, we can understand the
more profound and long-term significance of Hong Kong’s national security legislation. This
point is crucial.

1.3 The Background, Purpose, and Legal Basis for Establishing Hong Kong’s Legal
System for Safeguarding National Security

Now, let’s talk about the third level, the background, purpose, and legal basis for establishing
Hong Kong’s legal system to safeguard national security.
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The National People’s Congress’ document on the “Hong Kong National Security Law” clearly
and concisely explains the background, purpose, and legal basis of the enactment of the “Hong
Kong National Security Law,” as well as some basic principles embodied in the National
Security Law. After we understand the background, purpose, and legal basis of the legislation
of the “Hong Kong National Security Law,” we can understand the legitimacy and legality of
the legislation of the “Hong Kong National Security Ordinance” in 2024.

According to Wang Chen, Vice Chairman of the Standing Committee of the National People’s
Congress, and his explanation in the session of the National People’s Congress on 22 May 2020,
the Hong Kong Special Administrative Region has a constitutional obligation to enact national
security legislation under Article 23 of the Hong Kong Basic Law. However, in view of the
local political difficulties in Hong Kong, “over the past 20 years since Hong Kong’s return to
China, the legislation on Article 23 has not been completed due to the extreme obstruction and
interference from forces that are anti-China, disruptive to Hong Kong, and forces that are
external.

Moreover, since the failure of legislation in 2003 on Article 23, this legislation has been
seriously stigmatized and demonized by some people with ulterior motives in Hong Kong. It is
actually very difficult for the Hong Kong Special Administrative Region to complete the
legislation on Article 23…Under the current situation in Hong Kong, it is necessary to establish
and improve the legal system and enforcement mechanism for the Hong Kong Special
Administrative Region to maintain national security at the national level. This is to change the
long-term “defenceless” situation in the field of national security and to promote the
maintenance of national security and the construction of national security institutions on the
track of the Constitution and the Hong Kong Basic Law. This is to strengthen the maintenance
of national security and to ensure the steady and long-term development of the cause of ‘One
Country, Two Systems’ in Hong Kong.” Please pay attention to the final point of this sentence,
which is that the entire legislation is to ensure the steady and long-term development of Hong
Kong’s “One Country, Two Systems” cause.

In addition, the “Decision of the National People’s Congress on Establishing and Improving
the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative
Region to Safeguard National Security” passed at the Third Session of the 13th National
People’s Congress on May 28, 2020, clearly points out the socio-political background of
establishing the Hong Kong National Security Law. It pointed out that: “The session considered
that the risks for national security in the Hong Kong Special Administrative Region (HKSAR)
have become notable in recent years. Various unlawful activities, such as advocacy for ‘Hong
Kong independence’ as well as acts of secession, violence, terrorism, etc., have seriously
jeopardised national sovereignty, unity, and territorial integrity. Certain foreign or external
forces have flagrantly interfered in Hong Kong’s affairs and utilised Hong Kong to carry out
activities endangering national security.”

Thus, the state enacts the Hong Kong National Security Law “to safeguard national sovereignty,
security, and development interests, uphold and improve the ‘One Country, Two Systems’
regime, safeguard the long-term prosperity and stability of Hong Kong, and safeguard the
legitimate rights and interests of Hong Kong residents.”

The legal basis for China to enact the Hong Kong National Security Law are Articles 31, 62(2),
62(14), and 62(16) of the Constitution of the People’s Republic of China (PRC) and the relevant
provisions of the Basic Law of the HKSAR of the PRC. Apart from Article 23 of the Basic Law,

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which has been quoted in full above, we should pay attention to the following two things
stipulated by the Constitution:

Article 31 of the Constitution

“The state may establish special administrative regions when necessary. The systems
instituted in special administrative regions shall, in light of specific circumstances,
be prescribed by laws enacted by the National People’s Congress.” This is the
provision of Article 31.”

Article 62 of the Constitution lists the functions and powers exercised by the National People’s
Congress:

“(2) overseeing the enforcement of the Constitution;

(14) deciding on the establishment of special administrative regions and the
systems to be instituted there;
(16) other functions and powers that the highest state organ of power should
exercise.”

We should pay attention to the decision of the National People’s Congress on Establishing and
Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special
Administrative Region to Safeguard National Security, which also emphasised the following
important principles:

1. The country unswervingly, fully and faithfully implements the principles of “One
Country, Two Systems.”
2. The country resolutely opposes interference in the HKSAR’s affairs by any foreign or
external forces.
3. It is the HKSAR’s constitutional responsibilities to safeguard national sovereignty, unity
and territorial integrity.
4. The HKSAR must establish and improve the institutions and enforcement mechanisms
for safeguarding national security.

To sum up, we can clearly see that the legislation of Hong Kong National Security Law in 2020
reflects China’s adherence to the “One Country, Two Systems” policy. One of the legislative
purposes of the Hong Kong National Security Law is to counter foreign and external forces that
blatantly interfere in Hong Kong. We can regard the Hong Kong National Security Law as a
national law that focuses on national defense and involves foreign affairs. Please pay attention
to this.

Five years have passed since the promulgation and implementation of the Hong Kong National
Security Law. Research literature on this national law has grown rapidly in Hong Kong. People
in Hong Kong are beginning to reach an increasingly broad consensus on the necessity of this
law, on the constitutional responsibility of the Hong Kong government and its people to
safeguard Hong Kong’s national security, and on the role of the Hong Kong National Security
Law in China’s constitutional order. Referring to the statement of Prof. Chen Hung-yee, the
Hong Kong National Security Law “can be regarded as setting the bottom line for the ‘One
Country’ element of ‘One Country, Two Systems’ in the form of legal norms.”

Echoing the legislation of the “Hong Kong National Security Law,” the “Hong Kong National
Security Ordinance” of 2024 clearly states at the beginning that: “An Ordinance to improve the
law for safeguarding national security in the Hong Kong Special Administrative Region of the
People’s Republic of China; and to provide for related matters. WHEREAS it is a must—
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“(a) to resolutely, fully and faithfully implement the policy of “One Country, Two
Systems,” under which the people of Hong Kong administer Hong Kong with
a high degree of autonomy;
(b) to establish and improve the legal system and enforcement mechanisms for
the HKSAR to safeguard national security; and
(c) to prevent, suppress and punish acts and activities endangering national
security in accordance with the law, to protect the lawful rights and interests
of the residents of the HKSAR and other people in the HKSAR, to ensure the
property and investment in the HKSAR are protected by the law, to maintain
prosperity and stability of the HKSAR… NOW, THEREFORE, it is enacted
by the Legislative Council.”

To conclude, the Hong Kong national security legal system, formed primarily by the Hong
Kong National Security Law (2020) and the Hong Kong National Security Ordinance (2024),
constitutes a relationship of “compatibility, convergence, and complementarity.” Such
“compatibility, convergence, and complementarity” are also included in their relationship with
the constitutional order which is established by the Constitution and the Basic Law. The aim is
to promote the steady and sustained implementation of the “One Country, Two Systems” policy.
The most fundamental basis for this is a principle explicitly stated in the Hong Kong National
Security Ordinance: “the highest principle of the policy of ‘One Country, Two Systems’ is to
safeguard national sovereignty, security and development interests.”

Below, we will continue to understand and discuss the basic principles established by Hong
Kong’s national security legal system.

2. Law as Safeguard: the Legal Principles of the Hong Kong National Security Law

Now let’s move on to the second section: Law as safeguard: the legal principles of the Hong
Kong National Security Law.

Below, we directly examine some of the main articles of the “Hong Kong National Security
Law” to understand the basic content and the legal principles of this law. First of all, I advise
you to read the General Provisions of the Hong Kong National Security Law.

According to Professor Wang Zhenmin, former Dean of Tsinghua University Law School, the
basic principles established by a law reflect the content and essence of the law, and play a
guiding role in the whole law. The “Hong Kong National Security Law” stipulates several
principles that the Hong Kong Special Administrative Region should adhere to in maintaining
national security in Chapter 1 General Provisions: the principle of protecting human rights
(Article 4), the principle of the rule of law: no one shall be convicted and punished for an act
which does not constitute an offence under the law, Presumption of innocence: no one shall be
liable to be tried or punished again for an offence for which he or she has already been finally
convicted or acquitted in judicial proceedings and the principle of protecting the litigation rights
of the participants. These principles are all stipulated in Article 5. Part 6 of Chapter 3 stipulates
the principle of non-retroactivity. The Supplementary Provisions in Chapter 6 stipulate the
principles of keeping State secrets, trade secrets, or personal information confidential.
Accurately grasping the content and requirements of these legal principles is very important for
our understanding of the Hong Kong National Security Law.

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2.1 Non-retroactivity of the Hong Kong National Security Law

Now, let us first look at the principle of non-retroactivity stipulated in the Hong Kong National
Security Law.

Before we further discuss the General Provisions of the Hong Kong National Security Law, we
must first point out that the Hong Kong National Security Law does not have retrospective
effect. Article 39 of the Hong Kong National Security Law clearly stipulates that “this Law
shall apply to acts committed after its entry into force for the purpose of conviction and
imposition of punishment.” Attention, it is “after its entry into force”. That is to say, the Hong
Kong National Security Law does not apply to illegal or criminal acts before June 30, 2020.

According to Professor Wang Zhenmin of Tsinghua University: Article 39 of the “Hong Kong
National Security Law confirms the legal principle of non-retroactivity. The Law will not apply
to previous acts. Nor will it use current sentencing to punish past crimes”.

Specifically, the “Hong Kong National Security Law” is a forward-looking law designed to
prevent any violations that may arise in the future, but will not punish any behaviours that took
place before 30 June 2020. It can be seen from Article 39 that “this Law shall apply” only “to
acts committed after its entry into force.” For those who still remember everything that
happened in 2019, it is very clear that the Hong Kong National Security Law cannot be invoked
to punish illegal or criminal acts in 2019. In this sense, the “Hong Kong National Security Law”
is a law that heals social wounds. The primary function of the National Security Law for Hong
Kong is to resolve extreme antagonisms within society and to prevent further intensification of
conflicts. Based on this basic understanding, we can now continue to examine the basic
principles contained in the text of the “Hong Kong National Security Law.”

2.2 Six Basic Principles of the Hong Kong National Security Law

Now, let’s look at the second level, which is the Six Basic Principles of the Hong Kong National
Security Law.

The six provisions of Chapter 1: General Provisions of the Hong Kong National Security Law
set forth the general principles. These provisions together form the cornerstone of the Hong
Kong National Security Law. Without proper and sufficient attention to these macro principles,
our understanding of the Hong Kong National Security Law may be incorrect. I will explain
the principles and spirit embodied in each article one by one.

Article 1: Long-term Goals and the Principle of Pluralism

The first provision of the General Provisions is as follows:

“Article 1 This Law is enacted, in accordance with the Constitution of the People’s
Republic of China, the Basic Law of the Hong Kong Special Administrative Region
of the People’s Republic of China, and the Decision of the National People’s
Congress on Establishing and Improving the Legal System and Enforcement
Mechanisms for Safeguarding National Security in the Hong Kong Special
Administrative Region, for the purpose of: ensuring the resolute, full and faithful
implementation of the policy of ‘One Country, Two Systems’ under which the
people of Hong Kong administer Hong Kong with a high degree of autonomy;
safeguarding national security; preventing, suppressing and imposing punishment
for the offences of secession, subversion, organisation and perpetration of terrorist
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activities, and collusion with a foreign country or with external elements to

endanger national security in relation to the Hong Kong Special Administrative
Region; maintaining prosperity and stability of the Hong Kong Special
Administrative Region; and protecting the lawful rights and interests of the
residents of the Hong Kong Special Administrative Region.

This provision shows that the enactment of the National Security Law for Hong
Kong serves many long-term goals that reinforce one another. The long-term and
pluralistic goals of this legislation are manifested in five levels: (1) ensuring the
resolute, full and faithful implementation of the policy of “One Country, Two
Systems” under which the people of Hong Kong administer Hong Kong with a high
degree of autonomy; (2) safeguarding national security (3) preventing, suppressing
and imposing punishment for the offences of secession, subversion, organisation
and perpetration of terrorist activities, and collusion with a foreign country or with
external elements to endanger national security in relation to the Hong Kong Special
Administrative Region; (4) maintaining prosperity and stability of the Hong Kong
Special Administrative Region; and (5) protecting the lawful rights and interests of
the residents of the Hong Kong Special Administrative Region.

According to Professor Wang Zhenmin of Tsinghua University: “From the wording

of this provision, it can be seen that the ultimate purpose of maintaining national
security is to maintain the prosperity and stability of Hong Kong, and to better
protect lawful rights and interests of Hong Kong residents.”

It should be pointed out that the legislative purpose of China’s National Security Law is
pluralistic. Article 1 of the 2015 China National Security Law about the purpose of legislation
includes the following dimensions: (1) maintaining national security; (2) the political system;
(3) the socialist system with Chinese characteristics; (4) the fundamental interests of the people;
(5) ensuring the smooth advancement of reform, opening up, and socialist modernization; (6)
achieving the great rejuvenation of the Chinese nation. In other words, consistent with the
legislative principles of China’s national security law, the values and goals pursued by the Hong
Kong National Security Law have multiple dimensions. In other words, it does not simply focus
on conviction and punishment. As for why the purpose of legislation is pluralistic, it is because
the meaning of national security is complex and diverse. Please pay attention to this.

Article 2: Fundamental Provisions of Hong Kong Basic Law

Article 2 is a fundamental provision of the Hong Kong Basic Law.

The original text of Article 2 of the General Provisions of the Hong Kong National Security
Law is as follows:

“The provisions in Articles 1 and 12 of the Basic Law of the Hong Kong Special
Administrative Region on the legal status of the Hong Kong Special Administrative
Region are the fundamental provisions in the Basic Law. No institution,
organisation or individual in the Region shall contravene these provisions in
exercising their rights and freedoms.”

Thus, Article 2 of the Hong Kong National Security Law clearly stipulates that two fundamental
provisions of the Hong Kong Basic Law Hong Kong must be observed. For instance:

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“No institution, organisation or individual in the Region shall contravene these

provisions in exercising their rights and freedoms.”

What are the specific contents of these two articles?

Let’s first look at Article 1 of the Basic Law of Hong Kong. According to this provision:

“The Hong Kong Special Administrative Region is an inalienable part of the

People’s Republic of China.”

Article 12 of the Hong Kong Basic Law:

“The Hong Kong Special Administrative Region shall be a local administrative

region of the People’s Republic of China, which shall enjoy a high degree of
autonomy and come directly under the Central People’s Government.”

Article 2 of the Hong Kong National Security Law is of great constitutional significance. First
of all, the provision differentiates the 160 articles in the Hong Kong Basic Law with respect to
the power of their effect. Secondly, the provision clearly refers to two fundamental Articles of
the Hong Kong Basic Law. These two fundamental Articles are overriding. That is, no one or
institution may violate them. The supremacy of the two fundamental Articles is grounded on
national security reasons. Everyone needs to pay attention to this point.

Article 3: Balanced Participation Principle

Article 3 of the General Provisions of the Hong Kong National Security Law embodies the
Balanced Participation Principle, which means that both the central government and local
governments have constitutional responsibilities to safeguard national security. The Law states,

“The Central People’s Government has an overarching responsibility for national

security affairs relating to the Hong Kong Special Administrative Region. It is the
duty of the Hong Kong Special Administrative Region under the Constitution to
safeguard national security and the Region shall perform the duty accordingly.”

First, it is important to note that the Standing Committee of the National People’s Congress
enacted the National Security Law of the People's Republic of China in 2015. The NPC
Standing Committee then enacted the Hong Kong National Security Law in 2020, which came
into effect on 30 June of the same year. The Standing Committee of the National People’s
Congress enacted these two national laws, which are interrelated in terminology and
constitutional meaning (such as national security obligations). For example, Article 11 of the
National Security Law stipulates that “the sovereignty and territorial integrity of China shall
not be infringed upon or partitioned. Maintaining the sovereignty, unity, and territorial integrity
of the state shall be the common obligation of all Chinese people, including Hong Kong and
Macao compatriots and Taiwan compatriots.” Article 40 of the National Security Law clearly
stipulates that “the Hong Kong Special Administrative Region shall fulfill the obligation of
maintaining national security.” The Hong Kong Special Administrative Region’s constitutional
responsibility to safeguard national security comes from the Constitution, the Hong Kong Basic
Law and the National Security Law. Correspondingly, we can see that Article 3 stipulates the
Balanced Participation Principle, which states that both the central authorities and the SAR
have responsibilities to safeguard national security. Similarly, everyone needs to pay attention
to this point. That is, in maintaining national security, the central government and the HKSAR
participate in a balanced manner.
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Article 4: The Principle of Human Rights Protection

Now, let’s look at Article 4, which establishes the principle of human rights protection.

Article 4 in the General Provisions of the Hong Kong National Security Law stipulates that:

“Human rights shall be respected and protected in safeguarding national security in

the Hong Kong Special Administrative Region. The rights and freedoms, including
the freedoms of speech, of the press, of publication, of association, of assembly, of
procession and of demonstration, which the residents of the Region enjoy under the
Basic Law of the Hong Kong Special Administrative Region and the provisions of
the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall
be protected in accordance with the law.”

Dr. Maria Tam explained this point in detail in her lecture. She reminds us that: “The exercise
of freedom must be exercised within the scope of the law. Human rights and freedom are
protected within the scope of the law. The “Bill of Rights Ordinance” states that when it is
necessary to protect national security, relevant freedoms may be restricted in accordance with
the law; relevant precedents also show that human rights are never absolute or unrestrictable.”
In other words, people can enjoy the human rights and freedoms stipulated in the law, but
human rights and freedoms are not absolutely unrestricted.

According to Professor Wang Zhenmin’s interpretation of the principle of human rights

protection: “The Hong Kong Basic Law which was enacted in accordance with the Constitution
embodies the spirit of human rights protection. Chapter 3 of the Hong Kong Basic Law
stipulates sufficient and broad rights and freedoms enjoyed by Hong Kong residents.” “National
security is a legitimate reason for restricting rights and freedoms. The relevant provisions of the
Hong Kong National Security Law conform to the requirements of international human rights
conventions, and have not changed the human rights protection standards established in the
Hong Kong Basic Law.” “National security is a prerequisite for the realization of rights and
freedoms.” Similarly, this point is also very important. I hope everyone can pay attention to the
basic content of this point.

Article 5: The Principle of the Rule of Law

Now, let’s look at the principle of the rule of law stipulated in Article 5 of the Hong Kong
National Security Law.

Article 5 in the General Provisions of the Hong Kong National Security Law stipulates that the
principle of the rule of law shall be adhered to in preventing, suppressing, and imposing
punishment for offences endangering national security. Under the principle of the rule of law,
the Hong Kong National Security Law establishes a series of corresponding secondary
principles to protect the legitimate rights and interests of the people from possible infringement
by the government, including the following provisions:

▪ A person who commits an act which constitutes an offence under the law shall be convicted
and punished in accordance with the law. Its basic meaning is that no one shall be convicted
and punished for an act which does not constitute an offence under the law.

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▪ The principle of presumption of innocence. Its basic meaning is that a person is presumed
innocent until convicted by a judicial body.

▪ The right to defend himself or herself and other rights in judicial proceedings that a criminal
suspect, defendant, and other parties in judicial proceedings are entitled to under the law
shall be protected. That means you have the right to hire a lawyer to defend you.

▪ No one shall be liable to be tried or punished again for an offence for which he or she has
already been finally convicted or acquitted in judicial proceedings. Having already
undergone such judicial procedures, no one shall be tried or punished again for the same
act.

Please pay attention to the original text of Article 5 is as follows:

“A person is presumed innocent until convicted by a judicial body. The right to

defend himself or herself and other rights in judicial proceedings that a criminal
suspect, defendant, and other parties in judicial proceedings are entitled to under the
law shall be protected. No one shall be liable to be tried or punished again for an
offence for which he or she has already been finally convicted or acquitted in judicial
proceedings.”

Article 5 is very important. Its basic content contains many diverse secondary legal
principles. Please pay attention to this.

Article 6: Safeguarding National Security is the Common Constitutional Obligation of

Chinese Citizens

Article 6 emphasizes the joint responsibility of all Chinese people inside and outside the Hong
Kong Special Administrative Region.

Article 6 stipulates that: “It is the common responsibility of all the people of China, including
the people of Hong Kong, to safeguard the sovereignty, unification and territorial integrity of
the People’s Republic of China. Any institution, organisation or individual in the Hong Kong
Special Administrative Region shall abide by this Law and the laws of the Region in relation
to the safeguarding of national security, and shall not engage in any act or activity which
endangers national security.”

Please pay attention to paragraph 3 of Article 6 of the Hong Kong National Security Law, which
stipulates the principle of observing the statutory obligation to take oaths:

“A resident of the Region who stands for election or assumes public office shall
confirm in writing or take an oath to uphold the Basic Law of the Hong Kong Special
Administrative Region of the People’s Republic of China and swear allegiance to the
Hong Kong Special Administrative Region of the People’s Republic of China in
accordance with the law.”

According to the Interpretation of Article 104 of the Basic Law of the Hong Kong Special
Administrative Region of the People’s Republic of China by the Standing Committee of the
National People’s Congress in 2016, oath-taking for standing for election or taking up public
office bears the following meanings:

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1. Oath-taking is the legal prerequisite and required procedure for public officers specified in
the Article (Article 104 of the Basic Law) to assume office.
2. Oath-taking must comply with the legal requirements in respect of its form and content.
3. An oath taker is disqualified forthwith from assuming the public office specified in the
Article if he or she declines to take the oath.
4. The oath must be taken before the person authorized by law to administer the oath.
5. Oath-taking is a legal pledge made by the public officers specified in the Article to the
People’s Republic of China and its Hong Kong Special Administrative Region and is
legally binding. The oath taker must sincerely believe in and strictly abide by the relevant
oath prescribed by law. An oath taker who makes a false oath or who, after taking the oath,
engages in conduct in breach of the oath shall bear legal responsibility in accordance with
the law.

All students need to pay special attention to this.

From the above six General Provisions of the Hong Kong National Security Law, we can see
that the Hong Kong National Security Law not only protects national security, but also protects
the legal rights and interests of individuals. In other words, the basic meaning of national
security laws is protection; that is, the law is used to protect national security and individual
rights rather than punishment. Please pay attention to this. This is consistent with the meaning
that Hong Kong’s national security legislation focuses on prevention rather than punishment.

It is important to note that the basic principles of the Hong Kong National Security Law (2020)
and the Hong Kong National Security Ordinance (2024) are consistent.

For example, Article 2 of the Hong Kong National Security Ordinance “Principles of this
Ordinance” stipulates as follows:

(a) the highest principle of the policy of “One Country, Two Systems” is to safeguard
national sovereignty, security and development interests;
(b) human rights are to be respected and protected, the rights and freedoms, including the
freedoms of speech, of the press and of publication, the freedoms of association, of
assembly, of procession and of demonstration, enjoyed under the Basic Law, the
provisions of the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights as applied to the
HKSAR, are to be protected in accordance with the law; and
(c) for acts and activities endangering national security, there must be adherence to active
prevention in accordance with the principle of the rule of law, and suppression and
punishment in accordance with the law

Article 4 of the Hong Kong National Security Ordinance stipulates the meaning of “Meaning
of national security”:

“In this Ordinance or any other Ordinance, a reference to national security is a

reference to the status in which the state’s political regime, sovereignty, unity and
territorial integrity, the welfare of the people, sustainable economic and social
development, and other major interests of the state are relatively free from danger
and internal or external threats, and the capability to maintain a sustained status of
security.”

Article 99 and 100 stipulate that:

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99. Application of procedure under HK National Security Law to offences under this
Ordinance. To avoid doubt, any case in connection with an offence under this Ordinance
is a case mentioned in Article 41 of the HK National Security Law, and the procedure
under Chapter IV of the HK National Security Law applies to such a case.

100. Cases concerning national security to be adjudicated by designated judges.

We will continue to talk about how to understand some of the specific provisions of the Hong
Kong National Security Ordinance in 2024 in the future.

3. The Institutional System Established by the Hong Kong National Security Law

Now, let’s talk about Section 3—Institutional safeguard: Institutions that safeguard national
security.

After understanding the law as a form of protection, which is a general principle, another
dimension of Hong Kong’s legal system for safeguarding national security that needs attention
is institutional preparedness. Institutional preparedness means that if the basic principles of the
Hong Kong National Security Law are to be realized, various institutions and regulations need
to be established in Hong Kong before the law can really have teeth. This is particularly
reflected in Chapter Two of the Hong Kong National Security Law on The Duties and the
Government Bodies of the Hong Kong Special Administrative Region for Safeguarding
National Security, and Chapter Five on the Office for Safeguarding National Security of the
Central People’s Government in the Hong Kong Special Administrative Region. Among the 66
articles in the Hong Kong National Security Law, there are 27 articles on institutional protection,
accounting for more than one-third and nearly one-half of the entire National Security Law.
From this, it can be considered that the focus of the Hong Kong National Security Law is
actually institutional preparedness for national security, with the main purpose of improving
the national security institutions.

3.1 Hong Kong Special Administrative Region’s Obligation to Safeguard National

Security

How should we interpret this in concrete terms? Let us first look at the duty of the HKSAR to
safeguard national security.

On the basis of the six basic principles in the General Provisions of Chapter 1, we can turn to
the five constitutional obligations of the Hong Kong Special Administrative Region to
safeguard national security. For details, see the following articles on obligations in Part 1 of
Chapter 2, including constitutional responsibilities under Article 7:

Article 7: The Hong Kong Special Administrative Region shall complete, as early as possible,
legislation for safeguarding national security as stipulated in the Basic Law of the Hong Kong
Special Administrative Region and shall refine relevant laws. This is stipulated by Article 23
of the Hong Kong Basic Law.

Article 8: In order to safeguard national security effectively, the law enforcement and judicial
authorities of the Hong Kong Special Administrative Region shall fully enforce this Law and
the laws in force in the Region concerning the prevention of, suppression of, and imposition of
punishment for acts and activities endangering national security.

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Article 9: The Hong Kong Special Administrative Region “shall strengthen its work on
safeguarding national security and prevention of terrorist activities,” and “strengthen public
communication, guidance, supervision and regulation.”

Article 10: The Hong Kong Special Administrative Region “shall promote national security
education in schools to raise the awareness of Hong Kong residents of national security and of
the obligation to abide by the law.”

Article 11: The Chief Executive of the Hong Kong Special Administrative Region “shall be
accountable to the Central People’s Government for affairs relating to safeguarding national
security in the Hong Kong Special Administrative Region and shall submit an annual report on
the performance of duties of the Region in safeguarding national security.”

Everyone needs to pay attention to this part—the constitutional responsibilities stipulated in the
Hong Kong National Security Law of 2020.

3.2 Establishment of Institutions to Maintain National Security in the Hong Kong SAR

Let’s continue to look at the establishment of institutions to safeguard national security in the
HKSAR.

According to Professor Wang Zhenmin of Tsinghua University, “safeguarding national security

is the constitutional obligation of the Hong Kong Special Administrative Region. However, for
a long time, due to the imperfect legal system and enforcement mechanism, Hong Kong’s
constitutional obligation to safeguard national security had not been well fulfilled. The Hong
Kong National Security Law closed the legal loopholes in national security legislation and
enforcement mechanisms in the Hong Kong Special Administrative Region.”

According to Article 12 and Article 13 of the Hong Kong National Security Law, the Hong
Kong Special Administrative Region shall establish the Committee for Safeguarding National
Security. The Committee shall be responsible for affairs relating to and assume primary
responsibility for safeguarding national security in the Region. The committee is composed of
the Chief Executive and nine senior officials of the HKSAR Government. This is the provision
of Articles 12 to 13 of the Hong Kong National Security Law.

The Committee for Safeguarding National Security of the Hong Kong Special Administrative
Region shall have a National Security Adviser, who shall be designated by the Central People’s
Government (Article 15). No institution, organisation or individual in the Region shall interfere
with the work of the Committee. Information relating to the work of the Committee shall not
be subject to disclosure. Decisions made by the Committee shall not be amenable to judicial
review (Article 14).

The Police Force of the Hong Kong Special Administrative Region shall establish a department
to safeguard national security with law enforcement capacity (Article 16 and Article 43). It will
implement the six duties stipulated in Article 17, including collecting and analysing intelligence
and information concerning national security as well as investigating offences endangering
national security.

According to Article 18 of the Hong Kong National Security Law, the Department of Justice of
the Hong Kong Special Administrative Region shall establish a specialised prosecution division
responsible for the prosecution of offences endangering national security and other related legal
work. The head of the specialised prosecution division of the Department of Justice shall be
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appointed by the Chief Executive. The Chief Executive shall designate a number of judges from
the magistrates, the judges of the District Court, the judges of the Court of First Instance and
the Court of Appeal of the High Court, and the judges of the Court of Final Appeal, and may
also designate a number of judges from deputy judges or recorders, to handle cases concerning
offence endangering national security.

In addition, Chapter 5 of the Hong Kong National Security Law stipulates the establishment in
the Hong Kong Special Administrative Region of the national security institution of the Central
People’s Government. There are 14 articles, from Article 48 to Article 61, on the establishment
of the Office of the Central People’s Government for Safeguarding National Security in the
Hong Kong Special Administrative Region and its duties.

Chapter 5 has detailed regulations on the law-abiding principle for the Office for Safeguarding
National Security (Article 50), the financial guarantee of its funds from the central government
(Article 51), and its coordination with three other institutions from the central government in
Hong Kong (the Liaison Office of the Central People’s Government, the Office of the
Commissioner of the Ministry of Foreign Affairs in Hong Kong, and the Hong Kong Garrison
of the People’s Liberation Army) (Article 52) and with the Hong Kong SAR government
(Articles 53 and 54). These institutions need to coordinate, and the articles provide detailed
provisions on how they should coordinate. Chapter 5 also stipulates the conditions for the Office
for Safeguarding National Security to “exercise jurisdiction over a case concerning offence
endangering national security under this Law” (Article 55) and the corresponding procedures
applicable to such cases (Article 56-61).

To sum up, the above provisions of the Hong Kong National Security Law provide a legal basis
for the necessary national security institutions newly established in the Hong Kong Special
Administrative Region. They effectively maintain and protect Hong Kong’s national security.
Without adequate and efficient institutional capacity, national security will not be guaranteed.
The future of national security depends on these institutions created under the fundamental
principles of the Constitution and the Hong Kong National Security Law.

As has been pointed out by Dr. Maria Tam in her lecture, the Standing Committee of the 13th
National People’s Congress passed the Interpretation by the Standing Committee of the
National People’s Congress of Article 14 and Article 47 of the Law of the People’s Republic
of China on Safeguarding National Security in the Hong Kong Special Administrative Region
on December 30, 2022. This interpretation emphasizes the national security power and
authority of the Committee for Safeguarding National Security and the Chief Executive. The
Standing Committee dealt with the question whether overseas lawyers not qualified to practise
generally in the HKSAR may serve as defence counsel or legal representatives in cases
concerning national security. Following is the original interpretation:

“The relevant report submitted by the Chief Executive of the HKSAR to the Central
People’s Government on 28 November in accordance with the provisions of Article
11 of the Law of the People’s Republic of China on Safeguarding National Security
in the Hong Kong Special Administrative Region is of the view that overseas lawyers
not qualified to practise generally in the HKSAR may pose national security risks
when serving as defence counsel or legal representatives in cases concerning an
offence endangering national security. The question whether overseas lawyers not
qualified to practise generally in the HKSAR may serve as defence counsel or legal
representatives in cases concerning an offence endangering national security is a
question that requires certification under Article 47 of the Law of the People’s
Republic of China on Safeguarding National Security in the Hong Kong Special
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Administrative Region, and a certificate from the Chief Executive shall be obtained.
If the courts of the HKSAR have not requested or obtained a certificate on such
question from the Chief Executive, the Committee for Safeguarding National
Security of the HKSAR shall perform its statutory duties and functions in accordance
with the provisions of Article 14 of the Law of the People’s Republic of China on
Safeguarding National Security in the Hong Kong Special Administrative Region to
make relevant judgements and decisions on such situation and question.”

The above interpretation of the law by the National People’s Congress is essential to prepare
the institutional system for the Hong Kong Special Administrative Region to maintain and
guarantee China’s national security, to respond to emerging national security challenges at any
time, and to have sufficient capabilities to continually maintain national security in Hong Kong.

3.3 The Hong Kong National Security Ordinance (2024) Further Establishes
Mechanisms and Safeguards for Maintaining National Security, Characterised by
an Executive-led Approach

Now let’s talk about a very important content about the third level of institutional safeguards.
The Hong Kong National Security Ordinance further establishes mechanisms and safeguards
for maintaining national security, characterised by an executive-led approach.

Regarding this point, we can understand it by reading Articles 110 to 121 in Part 8 of the Hong
Kong National Security Ordinance. This is demonstrated by the fact that the Ordinance:

1. To better implement the “Hong Kong National Security Law,” the relevant interpretations
of the National People's Congress Standing Committee, and the “Ordinance,” Chief
Executive in Council may make subsidiary legislation for safeguarding national security;

2. The Chief Executive may issue an administrative instruction to any department or agency
of the Government or any public servant to give directions;

3. Any person, in making any decision in the performance of the function, must respect, and
implement in accordance with the law, the judgements and decisions of the National
Security Committee;

4. The Chief Secretary for Administration may provide advice, or give any direction for
promoting national security education;

5. Apart from the circumstances mentioned in Article 47 of the HK National Security Law,
the Chief Executive may also, in circumstances that the Chief Executive considers
appropriate, issue a certificate to certify whether an act or matter involves national security
or whether any material involves state secrets

4. A Comparative Perspective: US National Security Act in 1947 and UK National

Security Act in 2023

Now, let’s talk about the fourth part of this lesson, which is about the comparative perspective:
the US National Security Act (1947) and the British National Security Act (2023).

From the above explanations, we have gained an initial understanding of the basic principles
and main content of the HKSAR’s legal system for safeguarding national security. We have
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seen that this legal system for safeguarding national security emphasizes the principle of “One
Country, Two Systems,” adheres to a series of legal principles, and establishes rules for national
security institutions of the Hong Kong SAR and national security institutions of the central
government in Hong Kong. To prevent and stop activities endangering national security by law
and to protect national security, the purpose, as stated in the first article of the General
Provisions of the Hong Kong National Security Law, is to fully implement the policy of One
Country, Two Systems under which the people of Hong Kong administer Hong Kong with a
high degree of autonomy; to safeguard national security; to maintain prosperity and stability of
the Hong Kong Special Administrative Region; and to protect the lawful rights and interests of
the residents of the Hong Kong Special Administrative Region.

To facilitate a better understanding, below we look at the laws that safeguard national security
in Hong Kong from a comparative perspective. We will compare it to an early example of
national security law, the US National Security Act of 1947. This US national security law has
had a profound impact on the development of US national security capacity. This law was
enacted shortly after the end of World War II to carry out an overall reform of the US national
security system. We can see that its main approach is also to safeguard national security and
develop national security capabilities by establishing institutions.

4.1 The National Security Act of 1947

Let us look specifically at the legislation of the US National Security Act of 1947.

50 years before Hong Kong’s return to China and more than 70 years before the enactment of
the Hong Kong National Security Law, the United States enacted a national security law in
1947, the National Security Act of 1947. It is generally believed that the importance of this
National Security Act lies in its reorganization of various defense forces in the United States
after the end of World War II. It established the Department of Defense, which consists of the
Army, Navy, Air Force and other departments, under the Secretary of Defense; it established
what is now known as the National Security Council (NSC); it established the Central
Intelligence Agency (CIA), and the Joint Chiefs of Staff.

The overhaul of the defense-related institutions by the National Defence Act of 1947 clearly
benefited the comprehensive planning of national security and the unified strategic command
in times of war for the United States.

The law was incorporated under Title 50, Chapter 44 of the United States Code (National
Security Act). Article 2 under this title stipulates the purposes of the congressional legislation,
namely the objectives of Congress in enacting the National Security Act as follows:

“In enacting this legislation, it is the intent of Congress to provide a comprehensive

program for the future security of the United States; to provide for the establishment
of integrated policies and procedures for the departments, agencies, and functions of
the Government relating to the national security; to provide a Department of Defense,
including the three military Departments of the Army, the Navy (including naval
aviation and the United States Marine Corps), and the Air Force under the direction,
authority, and control of the Secretary of Defense; to provide that each military
department shall be separately organized under its own Secretary and shall function
under the direction, authority, and control of the Secretary of Defense; to provide for
their unified direction under civilian control of the Secretary of Defense but not to
merge these departments or services; to provide for the establishment of unified or
specified combatant commands, and a clear and direct line of command to such
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commands; to eliminate unnecessary duplication in the Department of Defense, and

particularly in the field of research and engineering by vesting its overall direction
and control in the Secretary of Defense; to provide more effective, efficient, and
economical administration in the Department of Defense…”

Apparently, the legislation is for the purpose of establishing national defense institutions. Thus,
its main content is on establishing institutions and regulations. Besides reiterating the purpose
stated in the congressional legislation, the US National Security Law makes statements and
stipulations over the following aspects, which can be seen from the chapter titles, including:
“Definitions of Military Departments,” “The Department of Defense,” “Coordination for
National Security,” “Accountability For Intelligence Activities,” “Protection of Certain
National Security Information,” “Access to Classified Information,” “Application Of Sanctions
Laws to Intelligence Activities” and “Education In Support of National Intelligence,” etc.

We can consider the National Security Act of 1947 as the earliest legal expression of the
“whole-of-government” approach of the United States in national security affairs. The US
National Security Act emphasizes a broad concept of national security (“a comprehensive
program”), a strategy of “integrated policies and procedures” and the establishment of new
national security agencies and their implementation mechanisms (such as the establishment of
the Department of Defense, the National Security Council, etc.). To sum up, the US National
Security Act provided the prototype for subsequent national security legislation around the
world. In comparison, the basic style and structure of the 2020 Hong Kong National Security
Law is far more delimited in scope than the comprehensive legislative model of the national
security law established by the United States more than 70 years ago. It should be noted that
the legislation of national security law is a comprehensive legislation model.

4.2 The Profound Impact of the 1947 US National Security Act

Next, let’s look at the far-reaching impact of the US national security law.

It is a fact that the enactment of the National Security Act had an important impact on the United
States during the Cold War. According to Douglas Stuart, author of “Creating the National
Security State”: “1947 National Security Act, [was] the single omnibus bill that created all of
the leading institutions of the US national security bureaucracy.”

In 1997, when the Chinese people were celebrating the return of Hong Kong to the motherland,
the US government was solemnly celebrating the 50th anniversary of the enactment of the US
National Security Act. In September of that year, US President Clinton announced that a week
in the middle of that month would be used to commemorate the 50th anniversary of the US
National Security Act. In his public address to the nation, Clinton solemnly explained the
significance of the National Security Act to the political and social development of the United
States:

“The United States emerged from the crucible of World War II to face a political and
military landscape changed forever by the events of that conflict… Recognizing these
harsh new realities, and wise in the hard lessons of recent history, President Truman
and America’s other civilian and military leaders determined to create the structures
and programs that would guarantee our national security and promote lasting world
peace. The result of their efforts was the National Security Act of 1947. This single
historic piece of legislation created four extraordinary institutions that continue to
serve America superbly a half-century later: the Department of Defense, the United

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States Air Force, the Central Intelligence Agency, and the National Security
Council…

This is the original text published by US President Clinton:

“As we observe the 50th anniversary of the National Security Act of 1947, we pay
tribute to the vision and determination of a generation of American civilian and
military leaders. Working together, they established the remarkable institutions we
celebrate this week; institutions that have helped to secure the peace and prosperity
that America enjoys today.

… I (President Clinton) call upon all Americans to observe this anniversary with
appropriate programs and activities celebrating the accomplishments of this
legislation and honoring the service and sacrifice of the thousands of dedicated
Americans who have strived to carry out its mandate for the past five decades.”

On the occasion of the 50th anniversary of the National Security Act, the President of the United
States seemed to formally declare that the National Security Act of the United States was indeed
“the Law That Transformed America.” The Cold War, the presidential power, the institutional
establishment, national security, peace, and prosperity are more or less connected with this law.
It can be seen that to promote peace and prosperity by national security legislation is one of the
purposes of the US national security legislation. The same is for any country including the US
and China. Peace and prosperity are the common purposes of national security legislation.

In conclusion, the US National Security Act is one of the most important pieces of legislation
in modern US history. Along with that, the United States created all the important institutions
that are active around the world. 26 July 2022, the 75th anniversary of the National Security
Law, became the headline of the US National Security Archive. It celebrated that: “Landmark
statute established the CIA, the NSC, and the foundations of the Department of Defense- the
Underpinnings of the Modern National Security State, Wide-ranging law contributed to a
‘complete overhaul’ of the Executive Branch, transformed US foreign policy making, and
empowered America’s global engagement through the Cold War and beyond.”

4.3 US National Security Legal System

Let’s next look at the US national security legal system.

Since the enactment of the US National Security Act in 1947, national security legislation in
Congress has been continuous and frequent. For example, in terms of US national security
legislation on international affairs, as of 31 December 2022, the US Congress has enacted a
total of 384 national security laws since 1973. On the US Congress official search website
(www.congress.gov), if we enter the keywords “national security,” and select “legislation,”
“Bills,” “Subject_ Policy Area: International Affairs,” “became law,” we will get these over
300 results. If the subject is changed to “Subject_ Policy Area: Armed Forces and National
Security,” then “became law,” we will also get hundreds of results.

Many of these laws are included in the more than sixty categories of Congressional legislation
under Title 50 of the United States Code, War and National Defense, as they relate to national
security. Besides the National Security Act of 1947, such laws include Export Administration
Act, Foreign Intelligence Surveillance Act, National Emergencies Act, International
Emergency Economic Powers Act, Espionage Act (with death penalty) and Trading with the
Enemy Act (with death penalty), etc. Clearly, these laws are national security legislation in a
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broad sense. From this perspective, the national security legislation by the US Congress clearly
serves the purpose of war and national defense. The reason is that the main body of
congressional national security legislation is under Title 50 “War and National Defense” of the
United States Code. It should be noted that, according to the views of American scholars,
“national security legislation in a broad sense not only covers national defense, but also
statecraft, foreign relations and economic policy.” Therefore, Title 50 of the United States Code
has “War and National Defense” as its theme, but actually involves a very wide range of
legislative content.

If we search for “117th Congress (2021-2022)” and “introduced” with the same search criteria,
we will get a lot of legislative information, including the Supply Chain Vulnerability
Assessment (S.849/H.R. 4295 Supply Chain Vulnerability Assessment Act of 2021), Food
Security is National Security Act (S.3089 Food Security is National Security Act of 2021)
National Security Council Membership Act, National Security Council Modernization
Act(H.R.4491 National Security Council Modernization Act of 2021, and many other acts.
Likewise, these bills include the Cyber Defense National Guard Act, the National Cold War
Center Act, etc.

Of course, because the search involves the two topics of “armed forces” and “national security”,
there are many legislations not directly related to national security in the statistics. But these
search results are enough to show that the US Congress not only keeps enacting laws on national
security, but also that the legislation happens very frequently. Therefore, no matter what, the
fact that US national security legislation takes place continually and frequently should be noted
by scholars and students. This is important.

Another point to note is that the national security legislation of the US Congress clearly has
supremacy over State laws in the US, from the perspective of the relationship . It is supreme in
effect and it clearly has the spirit of nationalism. According to the views of scholars studying
US national security law, the nationalist spirit of US national security legislation has been like
this since the beginning. For example, John Jay, the first US Supreme Court Chief Justice,
called for nationalism: “weakness and divisions at home would invite dangers from abroad; and
that nothing would tend more to secure us from them than union, strength, and good government
within ourselves…Instead of their being “joined in affection” and free from all apprehension
of different “interests”, envy and jealousy would soon extinguish confidence and affection, and
the partial interests of each confederacy, instead of the general interests of all America, would
be the only objects of their policy and pursuits.”

Another example is the court opinion made by Justice David Souter of the US Supreme Court:

“A fundamental principle of the Constitution is that Congress has the power to

preempt state law… When Congress intends federal law to “occupy the field,” state
law in that area is preempted. And even if Congress has not occupied the field, state
law is naturally preempted to the extent of any conflict with a federal statute.”

On the whole, Congress’s framework legislation on national security can include any or all
organic law, substantive law, and procedural law. That is to say, the form of legislation by the
Congress is diverse, flexible and comprehensive. That is to say, from a legal perspective, in the
United States, national security law is broadly defined. We could call this broad national
security law the “broad national security law”. Corresponding to national security laws in a
broad sense, we can call the laws enacted by the United States under the name of “national
security” as “narrow national security laws”. At the very least, this narrow version of the US
national security law should include at least three types: the National Security Act of 1947, the
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Internal Security Act of 1950 (also known as the Subversive Activities Control Act, which is a
typical national security legislation during the Cold War) and the Homeland Security Act
enacted in 2002, which can be seen as a national security legislation focussing on anti-terrorism
after 9.11.

To sum up, from the above discussion, we can see that national security legislation in the United
States is not only broad and detailed, but also imposes severe penalties. This can be seen from
the fact that three types of crimes clearly have death penalty clauses, including treason,
terrorism and espionage. From the perspective of the broad national security law, the main
reason why the national security legislation in the United States reflects this overall
development trend is related to the history of the US being founded by war, reflected in the
words “for the common defense” in the Preamble of the United States Constitution. It is also
related to the shift of the United States from war to emergency, that is, from foreign wars, the
American civil war, the two world wars to the Cold War and the war on terrorism in the post-
9/11 era.

4.4 Introduction to National Security Act 2023 of the UK

After introducing the US national security legal system and its significance, let’s look at the
British National Security Act 2023, which is the latest national security legislation in the United
Kingdom.

Similar to the US, the UK also continuously engages in broad national security legislation. For
example, in 2023, the UK Parliament enacted the latest National Security Act. This law consists
of 102 articles, including provisions for the conviction and punishment of those who pose
national security threats through espionage, sabotage, and acting for foreign powers.
Furthermore, this latest UK National Security Act stipulates the extraterritorial application of
certain provisions of the UK's Serious Crime Act 2007 and amends the Terrorism Act 2000.

In short, the 2023 UK national security legislation revised or created offences related to
espionage, sabotage, foreign interference and influence, etc., and granted police greater powers
of arrest, detention, search, seizure, and sentencing.

For us, it is important to note that the text of the 2023 UK National Security Act provided the
most direct and timely legislative model for the Legislative Council of the HKSAR in
establishing the overall structure of the 2024 Hong Kong National Security Ordinance,
including offences related to espionage, sabotage, foreign interference, and various provisions
on law enforcement powers and legal procedures. In other words, many provisions of the Hong
Kong National Security Ordinance directly reference the UK's National Security Act. I hope all
students will pay attention to this.

4.5 Reflections on US’s and UK’s National Security Acts

Now, let’s finally take a look at how to understand some basic facts about the national security
legislation of the United States and the United Kingdom as a whole.

Obviously, from a comparative perspective, the Hong Kong National Security Law enacted by
the Standing Committee of the National People's Congress of China clearly is the “narrow”
type of national security legislation in terms of its legislative concept and method. Regarding
this point, this can at least explain why the Hong Kong government still has the constitutional
responsibility to continue making legislation. The reason is not whether the legal system is
perfect or not, but that national security itself is a complex and major constitutional issue that
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requires “broad” national security legislation. Of course, how to implement it in terms of legal
form and legislative technique is another issue. By thinking about the previous and current
legislative controversies about Hong Kong National Security Law from this perspective, we
will understand that the issues of contention have never been about whether the law should be
enacted, but how to enact it. It is also about how to enact the broad and the narrow national
security laws as well as their procedures and forms.

In short, from the first national security legislation in 1947 to today, the US and UK have
enacted a wide range of laws, forming a comprehensive and broad national security legal system.
All these laws were made in the name of maintaining the national security of the United States.
The national security legal system has become an integral part of the US’s and UK’s legal
system. Therefore, national security legislation is both necessary and essential to the United
States. The same is true for other countries, and China is no exception.

5. Challenges and Responses: National Emergency in the United States and

Maintaining National Security in Hong Kong

Now we turn to the fifth part: Challenges and Responses: National Emergency in the United
States and Maintaining National Security in Hong Kong.

From the previous introduction to the US National Security Act, we have been acquainted with
a typical example of national security law, become aware of the depth and breadth of the
national security law, and conceptually distinguished the difference between the "broad national
security law" and the “narrow national security law”. This knowledge is helpful to our
understanding of a fact that is related to both the legislation of the Hong Kong National Security
Law and the US legal system of national security. It would be difficult to understand the strong
reaction of the United States to the Hong Kong National Security Law without a general
understanding of the US national security legislation. This fact is that the United States
responded to the formulation and implementation of the Hong Kong National Security Law by
declaring a national emergency. We should note that the US sanctions against China, including
the sanctions against Hong Kong government officials, are based on the premise that the US
President has declared a national emergency.

In May 2019, the President of the United States declared a state of emergency in the United
States against Huawei, which continued to take effect after 2020. In 2020, the President of the
United States declared national emergency on the grounds of “endangering national security”
four times, and announced the President's Executive Order (Executive Order) six times:
targeting electric equipment from China (E.O.13920), targeting Hong Kong (E.O.13936),
targeting Tiktok (E.O. 13942), targeting WeChat (E.O. 13943), targeting Chinese minerals
(E.O.13953), targeting Chinese military companies (E.O.13959). These 6 executive orders
target China explicitly or implicitly.

Two weeks after the Hong Kong National Security Law came into effect, on 14 July 2020,
Trump signed the President’s Executive Order on Hong Kong Normalization. In view of the
legislation of the Hong Kong National Security Law, Trump claimed,

“I therefore determine that the situation with respect to Hong Kong…constitutes an

unusual and extraordinary threat, which has its source in substantial part outside the
United States, to the national security, foreign policy, and economy of the United
States. I hereby declare a national emergency with respect to that threat.”

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In other words, the US declared national emergency over the Hong Kong National Security
Law, which remains in effect. The national emergency of the US will provide an external
background for us to think about Hong Kong National Security Law in this situation. The
national emergency declared by the United States against China will have a long-term impact
on China as a whole. As far as the Hong Kong National Security Law is concerned, as long as
the US national emergency is not terminated, the Hong Kong National Security Law will always
become a focus of attention for China and the United States. This point cannot be ignored by
any scholars, policy makers and ordinary people who respect objective facts.

In fact, since 2020, the United States has clearly entered a continual state of national emergency
of “Targeting China.” On a more profound level, we need to pay attention to the “renewed great
power competition” policy formulated by the United States against China: “great power
competition has profoundly changed the conversation about US defense issues from what it was
during the post–Cold War era: Counterterrorist operations and US military operations in the
Middle East are now a less-prominent element in the conversation, and the conversation now
focuses more on the following elements, all of which relate largely to China and/or Russia”.

From the above-mentioned actions taken by the United States against China and the Hong Kong
Special Administrative Region, it can be seen that the United States has not only provided China
with a long-established model in terms of national security legislation, but also interfered with
China’s national security legislation in Hong Kong. Correspondingly, we will understand that
China’s reason for strengthening and implementing national security legislation largely comes
more from an external rather than an internal threat. The function of the Hong Kong National
Security Law is therefore to a large extent to defend external interference and danger rather
than to take punitive actions internally.

It is precisely because of the above reasons that Hong Kong is closely related not only to the
future of the development of China as a whole, but also to the maintenance of national security.
As long as the relevant countries do not change their basic policies and laws against China’s
rise, the pressure on Hong Kong to maintain national security will increase, and the significance
of the Hong Kong National Security Law will continue to be sustained. Therefore, we need to
take all the security, legal, and development issues facing Hong Kong seriously. Maintaining
national security in Hong Kong is of great and long-term significance. This is one of the
fundamental reasons why we need to raise awareness of national security and national security
laws. This is important.

6. Conclusion

Now, we make the final conclusion.

We discuss the impact of political radicalization on social stability and national security. More
than 25 years have passed since Hong Kong returned to China in 1997. The tradition of the rule
of law in the Hong Kong Special Administrative Region has become solid and stronger. As
Albert Chen, a professor of constitutional law at the University of Hong Kong, said:

“First, autonomy, the Rule of Law, human rights and civil liberties have
successfully been practiced in the HKSAR under the constitutional framework of
OCTS and on the basis of the Basic Law. The power of Hong Kong courts to try
and decide cases has been left intact. Third, in the post-1997 era, the courts of Hong
Kong have flourished as the guardians of the Rule of Law, constitutionalism, human
rights and civil liberties. The discourse of the law has become more powerful than
ever before in Hong Kong society.”
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There is no doubt that the rule of law has a more solid foundation and momentum in Hong
Kong. However, there is one very important exception here, as Professor Chen states: “after
1997, the linkage between the legal systems of Hong Kong and of mainland China has remained
weak and loose.” Indeed, contradictions between the laws of the two jurisdictions do exist. As
Professor Chen reminds us: “The basic contradiction is that between many Hong Kong people’s
aspirations for liberty and democracy and the Central Government’s concern about sovereignty.”
But at the end of the day, it will take time and dialogue to find the best solution. Besides, there
is no other better way to properly solve this kind of problem.

According to Professor Chen’s point of view at the beginning of 2020: “When ‘One Country,
Two Systems’ was conceived in the early 1980s, the main difference between the ‘Two Systems’
was generally understood as being primarily related to economic systems; that is, a difference
between ‘socialism’ on the mainland and ‘capitalism’ in Hong Kong. Since then, economic
reform in China has radically transformed its socialist planned economy into a market economy
not much different from the economic system of Hong Kong. Today, the fundamental
difference between the ‘Two Systems’ is political and legal rather than economic.”

As students, you may not agree entirely with Professor Chen’s views, but the fact is that Hong
Kong has been increasingly politicized, as Professor Chen pointed out. More importantly, Hong
Kong politics after 1997 was not only divided, but also highly polarized. According to a
scholar’s research on social movements in Hong Kong, there were 51,915 approved
applications for protest rallies, out of a total of 51,946, between July 1997 and September 2012,
or an average of ten protests of that scale each day. “The number of these protests increased
from 1,974 events in 2004 to 6,818 in 2014.” A scholar has thus concluded that one
consequence of social politicization and radicalization is social polarization. According to the
research of the scholar: “contrary to the conventional view that political consciousness and
collective participation expedite the transition to democracy, what we have witnessed in Hong
Kong is a growing polarization between the state and civil society and within civil society”.

One of the consequences of polarization is that the role of law in Hong Kong society is affected.
Statistics on social movements fully demonstrate that the space has been opened up for the rise
and expansion of social movements in Hong Kong after 1997. According to Professor Albert
Chen’s research, from September 2003 to June 2014, “there were 5,529 public order incidents
and, as of 8 September 2014, only 16 protesters [had been] prosecuted. Generally speaking, it
thus seems that legal restrictions on demonstrations are not always strictly enforced in the SAR,
leaving considerable physical and legal space for protests associated with social movements.”
This is quoted from the original text by Prof. Chen.

At a deeper level, the law has become an arena of struggle for Hong Kong's social movements.
According to Professor Albert Chen: “Social movements are often about trying to change the
law for the better, but they may also be launched to oppose a change in the law. In both cases,
the law becomes an arena of struggle.” In this sense, two typical examples are “the movement
against national security legislation according to Article 23 of the Basic Law in 2003” and
“Anti-extradition Law Amendment Bill Movement in 2019.” Professor Chen thinks that under
such radicalised political context, “The legislative implementation of Article 23 of the Basic
Law in order to protect China’s national security and unity will probably be the single most
controversial legal and constitutional issue in the HKSAR in the foreseeable future.” “The
[Hong Kong] government’s intention with this exercise was not to curtail human rights and
civil liberties in Hong Kong. However, the trauma of this legislative exercise was the result of
the convergence of various circumstances.” In conclusion, national security legislation has been
highly politicized due to social movements and many other reasons. The constitutionality of the
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legislation was set aside. Hong Kong’s national security legislation has fallen into a polarizing
local political situation.

According to the summary by Wang Zhenmin at Tsinghua University about the dilemma of
Hong Kong’s national security legislation: Regarding the national security legislation for Hong
Kong in 2020, there are “four basic facts: first, since Hong Kong’s return to China, substantial
progress has been made in economy, democracy, human rights, and the rule of law; second,
these achievements after the return of Hong Kong have benefited from the ‘One Country, Two
Systems’ and the Basic Law; third, Hong Kong residents hope to restore the peace, stability and
prosperity under the ‘One Country, Two Systems’ and the Basic Law; fourth, it is impossible
to restore the stability and prosperity by resorting to the SAR's own capacity and resources.

Prof. Wang further pointed out four basic consensuses: the first consensus is that Hong Kong
cannot continue to be chaotic. The second consensus is that Hong Kong needs a law to end the
chaos. The third consensus is that the formulation of the National Security Law should be done
at the national level. The fourth consensus is that safeguarding national security and
implementing the 'One Country, Two Systems' as well as the Basic Law are indispensable.

This lecture emphasizes the importance of knowing and understanding the law that safeguard
Hong Kong’s national security from a comparative perspective. From a comparative
perspective, we can see that more than 70 years ago, the United States had formed the basic
paradigm of comprehensive national security legislation. Compared with the broad national
security legal system of the United States, we can see that the Hong Kong National Security
Law is indeed a “narrow” national security law. In any case, we need a comparative
understanding to gain a deeper understanding of the legal system of nation security in Hong
Kong. Regarding this point, the evaluation on the Hong Kong National Security Law by
Professor Wang Zhenmin at Tsinghua University is worth referring to:

“The national security legislation was realized under the guidance of the ‘One
Country, Two Systems’ principle, on the basis of the Constitution and the Basic Law.
It is to formulate a separate law for Hong Kong to maintain national security, instead
of moving the entire legal system to maintain national security at the national level.
This is a vivid embodiment of the principle of ‘One Country, Two Systems’.

Compared with the national security legal systems and enforcement mechanisms of
other countries in the world, we found that the national security legislation for Hong
Kong this time is very moderate. It is a minimum legislation, meeting a minimum
standard, and it is a life-saving law. In other words, without the legislation of the
National Security Law, Hong Kong would be finished. And even the whole country
would have a major national security crisis, so it is a life-saving law.”

This is the original text by Professor Wang Zhenmin of Tsinghua University. He believes that
the National Security Law is a life-saving law. This is very important and deserves everyone’s
attention.

To conclude, the Hong Kong National Security Law (2020) and the Hong Kong National
Security Ordinance (2024) embodies the overarching responsibility of the Central People’s
Government to safeguard national security and the constitutional obligation of the HKSAR
government. National security legislation in Hong Kong is not a retrospective law designed to
punish past mistakes. Hong Kong’s national security legislation is forward-looking. It is aimed
at defending against external national security challenges and resolving internal conflicts in a
radicalized society that have lasted for many years. The legislation of the Hong Kong National
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Security Law has multi-level and long-term goals. The legal system for safeguarding national
security includes fundamental principles including the protection of human rights and the rule
of law. For the purpose of institutional preparedness, Hong Kong’s national security legislation
establishes a system of institutions to maintain national security. As university students who
love Hong Kong, care about the country, and look at the world, we are in an era of globalization
where the world is undergoing tremendous changes. We must know and understand Hong
Kong’s national security legislation from a broad perspective. This is necessary for the future
development of Hong Kong and for our understanding of Hong Kong and the country. This is
a challenge we must face squarely.

Thank you!

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