Wednesday, August 12, 2020

Hualing Fu on the Relationship Between Hong Kong's Basic Law and the National Security Law

A Note on the Basic Law and the National Security Law
12 August 2020

Is the National Security Law (NSL) a second Basic Law standing on its own in its relationship with the Basic Law or is it part of the Basic Law structure and subject to its control? This is a difficult question. This note considers the arguments in favour of both positions and inclines towards the latter view as the better understanding of the relationship between the NSL and the Basic Law.

Legislative Hierarchy and Principles
The constitutional rules and principles in relation to the legislature of the mainland are most clearly stated in the Legislation Law. Article 7 of this Law provides that the National People’s Congress (NPC) and its Standing Committee (NPCSC) have the exclusive power to make laws.
     The NPC makes and amends criminal law, civil law, laws relating to state organs and other “basic laws”, which remains an undefined and controversial concept in Chinese law.
     The NPCSC makes and amends laws other than the basic laws. The NPCSC also has the power to make laws to partially supplement and amend the NPC laws (e.g. basic laws) when the NPC is not in session, but any addition and amendment shall not contravene the “basic principles” of the “basic laws”. [1]
     According to Article 97(1) of the same law, the NPC has the power to change or rescind laws made by the NPCSC that are “inappropriate.” [2]
     Notwithstanding these legislative rules, the Chinese Constitution does not provide a functional mechanism for constitutional review. The NPCSC occupies the commanding heights of the legislature and has the power both to make law and interpret law, rendering meaningless the possibility of post-enactment constitutional review of law.

The Basic Law
The Basic Law is a basic law in the Chinese hierarchy because it was enacted by the NPC and enjoys a higher constitutional status, albeit in a limited sense. Nevertheless, the Basic Law has a higher constitutional status among all laws in China because of its special function in creating a SAR in the implementation of Article 31 of the Constitution. As a result, the Basic Law is often regarded in Chinese constitutional scholarship as quasi-constitutional or a constitutional document and has been given a privileged constitutional status higher than ordinary NPC laws.
     The April 1990 Decision by the NPC is of special significance in signaling the special constitutional status of the Basic Law. On the same day it promulgated the Basic Law, the NPC made a Decision to affirm and to declare the constitutionality of the Basic Law. The Decision also establishes the supremacy of the Basic Law in the SAR by stating: “The systems, policies and laws to be instituted after the establishment of the Hong Kong Special Administrative Region shall be based on the Basic Law of the Hong Kong Special Administrative Region.”[3] The Basic Law constitutes the SAR, and therefore it is Hong Kong’s Constitution, mini or otherwise. Any other law, as long as it is implemented in Hong Kong, would have to be “based on”, subordinate to, and comply with the Basic Law. The NSL, as a NPCSC law, is no exception.

The NSL is a unique law, however, which follows an extraordinary law-making path. The NPC itself triggered the legislative process for the NSL through a Decision on 28 May 2020. The Decision relies directly on Article 31 and Article 62 (2) (12) (14) of the Constitution in authorising and mandating the NPCSC to make a NSL within the scope of the Decision. 
     Both the Basic Law and the Decision derive their authority from Article 31. This is also the first time that the NPC has invoked Article 62 (2) to exercise its power in extending a national law to Hong Kong. Article 62 sets out the different functions and powers of the NPC and paragraph (2) refers to the power to “supervise the enforcement of the Constitution”. The making of the NSL relied upon the Constitution for its application to Hong Kong outside of the framework of the Basic Law. This is a significant development in Basic Law jurisprudence and will have long-term consequences. Although the Basic Law is also relied on and referred to in the Decision, no reference is made to any specific articles of the Basic Law, leading to the argument that the NPC has indeed bypassed the Basic Law in making the NSL.
     According to the relevant clauses in Article 62 of the Constitution, the NPC can supervise the implementation of the Constitution (62 (2)); decide on establishment of a SAR and the system to be implemented there (62(14)); and exercise other powers that shall be exercised by the highest organ of state power (62(16)). In acting according to these functions and powers, the NPC is stating, as the sovereign power, it can enact any law for Hong Kong as circumstances demand and as it sees fit.
     On 30 June 2020, the NPCSC promulgated the NSL. Article 3 of the NSL provides that “The Central People’s Government has an overarching responsibility for national security affairs relating to the Hong Kong Special Administrative Region.” By this article, according to my reading of the Basic Law and the NSL, the NPCSC has effectively replaced Article 23 of the Basic Law with the NSL. Or one might say it is giving effect to what has always been implicit in Article 23.
     Article 7 of the NSL provides: “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 a technical article used to preempt the challenge that the NSL violates the “on its own” clause in Article 23 of the Basic Law. Given the substantial overlapping between the NSL and Article 23, in form and substance, and common legislative objectives of both laws, a more honest approach is to admit that the NPC has authorised its NPCSC to make an Article 23 law for Hong Kong to fix a potential or real serious national security crisis. The operative word in Article 7 is “complete” suggesting the NPCSC has started the Article 23 work project for Hong Kong to finish.

So what is the constitutional status of the NSL? It has been argued that the NSL is the second Basic Law for Hong Kong because of (A) its direct reliance on, and invocation of Article 31 and Article 62 (2) (12) and (14), and (B) the special authorisation of the NPC to make the NSL through its May Decision. According to this view, the NSL is a national law that exits in parallel to the Basic Law, supplementing and amending the Basic Law but not bound by it. That view, which accepts the creation of a separate source of law and an independent national security regime in Hong Kong outside the Basic Law, would have caused a fundamental change to ‘one country, two systems’. After a careful reading of the NPC Decision, the NSL, and the explanatory notes to both the Decision and the NSL, I cannot find any evidence that such a fundamental change is intended.
     A better view is that the NSL is an ordinary piece of NPCSC legislation, subordinate in status and force to the Basic Law. It is self-evident the NSL, according to the NSL itself (Article 1), was made “in accordance with” the Basic Law. The Basic Law remains a superior law to the NSL and the supreme law in Hong Kong.[4] This is so not merely because the Basic Law is a basic law enacted by the NPC – the NPC can make other basic laws. Rather it is due to the Basic Law’s quasi-constitutional status. The Basic Law remains Hong Kong’s constitution by its nature.
     The NSL is a NPCSC law that has been inserted into Annex III of the Basic Law to fill a gap left by Article 23, as contentious as the matter may be. As such, the NSL has to be consistent with, and accountable to, other provisions of the Basic Law so as to maintain the integrity of the Basic
     Law in accordance with Article 11.[5] The NSL may have replaced the explicit understanding of Article 23 to create a novel national security regime, but it is not immune from the control of the Basic Law.
     From the Chinese law perspective, as stated above, since the NPCSC both made the NSL and interprets both the NSL (Article 65) and the Basic Law (Article 158), a constitutional review of the NSL against the Basic Law by the NPCSC is unlikely to prove a meaningful exercise. However, the Chinese law position does not prohibit Hong Kong courts from developing a common law jurisprudence in interpreting the NSL in accordance with the standards of the Basic Law, that is to say to reconcile any potential conflict between the two laws through judicial interpretation, subject to the interpretative power of the NPCSC. [6]

[1] Article 7, Legislation Law.
[2] Article 97, Legislation Law.
[3] Decision of the National People’s Congress on the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990)
[4] Article 62 of the NSL states that “This Law shall prevail where provisions of the local laws of the Hong Kong Special Administrative Region are inconsistent with this Law.” “Local laws” Article 62 does not include the Basic Law.
[5] In the case of HKSAR v. Ng Kung Siu and another [1999] HKCFA 10, the CFA considered the constitutionality of the National Flag Ordinance, which was enacted through art 18(2) and Annex III, thereby further confirming that national laws enacted in this way must be consistent with the Basic Law.
[6] Article 65 of the NSL provides “The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress”. Given that the application of the NSL would necessarily involve judicial interpretation by Hong Kong courts, Article 65 must be referring to “ultimate or final power of interpretation”.

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