"Old Law in New Bottles: Reintroducing National Security Legislation in Hong Kong"
in Cora Chan & Fiona de Londras (eds), China's National Security: Endangering Hong Kong's Rule of Law? (Hart Publishing, March 2020),
Chapter 12, pp. 211- 230
Chapter 12, pp. 211- 230
Introduction: It is unthinkable that any future legislative exercise to reintroduce national security legislation in Hong Kong would start from a clean slate. To do so would be to ignore the considerable amount of intellectual work and public debate that went into the 2003 proposals. Those proposals had imperfections, but they also had some merit in proposing to modernise existing offences and abolish laws that, if used, would impinge on fundamental rights protected in the Basic Law. However, just as it would be foolhardy to disregard the 2003 proposals, it would be equally so to believe those proposals could be reintroduced without change; they are now old bottles for old wine. Important developments since 2003 in the legal and political contexts of China, Hong Kong and Macau need to be taken into account in any future exercise. Relevant international developments in anti-terrorism laws should also inform law-making deliberations.
This chapter considers the shape of new bottles for the old law of national security in Hong Kong. It identifies important local and international developments relevant to any future Article 23 legislative exercise, particularly two of the controversial proposals of 2003 concerning the offence of secession and the proscription mechanism for foreign political organisations. It will be argued there is no justification for reintroducing the proscription mechanism and its accompanying criminal offence. As for the secession offence, the 2003 proposal can be made legitimate by drafting the terms more clearly and keeping the scope within tighter limits. It is further argued that notwithstanding the rise in pro-independence sentiments amongst a small number of people in Hong Kong, introducing an additional offence criminalising the advocacy of secession would be unjustified and highly problematic.
The chapter begins with a review of significant legal developments since 2003. First there is the case law of the Court of Final Appeal (CFA), from which can be derived a set of legislative guidelines for drafting national security offences. Next there are the legislative developments in mainland China and Macau related to national security. Finally, the consequences and experience of post-9/11 antiterrorism legislation may shed light on the merits of adopting similar procedural mechanisms. Following this review, proposals for the secession offence, required by Article 23, and a proscription mechanism for individuals and bodies on national security grounds are discussed having regard to the developments since 2003 particularly the legislative guidelines proposed in this chapter...