The Situation in Hong Kong: 陳弘毅談國安法爭議： 以香港為家的我們的心聲 [Chen Hongyi on the National Security Law Controversy: View of Those Who Consider Hong Kong Home]

陳弘毅談國安法爭議： 以香港為家的我們的心聲

Over the course of the last year, I have been closely following the writing of Chen Hongyi (陳弘毅), an eminent global academic and constitutional scholar. (Albert Chen Hung-yee 陳弘毅 (Hong Kong U.) on the Situation in Hong Kong Part 2: 一國兩制的博弈 ["The Game of One Country Two Systems"]; Albert Chen Hung-yee 陳弘毅 (Hong Kong U.) on the Situation in Hong Kong: 理性溝通的困境 ["The Dilemma of Rational Communication"]; The Situation in Hong Kong: Albert Chen. "Who will supervise the police?" [陳弘毅 誰來監督警察？]).   He has undertaken a difficult role, to publicly take a middle path guided almost entirely by the relevant principles and ideology expressed through law and exercised through political decisions. 

This Olympian view is both profound and distancing.  And that reflects the contradiction of the political situation in Hong Kong now--the time for considered discourse, for considered stock taking guided by reason, may well be over.  If Professor Chen represents Nietzsche's Apollonian voice, the current situation in Hong Kong has moved toward the culmination of its Dionysian phase (Nietzsche, The Birth of Tragedy (1910 English translation) ("In this sense the Dionysian man may be said to resemble Hamlet: both have for once seen into the true nature of things, —they have perceived, but they are loath to act; for their action cannot change the eternal nature of things; they regard it as shameful or ridiculous that one should require of them to set aright the time which is out of joint." Ibid., ¶ 7pp. 61-62)). That dialectic which is the opposition of the Apollonian and the Dionysian, and the contradiction it embodies, might well have been inevitable under the circumstances of the situation in Hong Kong (discussed here).

It is in that role that Professor Chen has just published his thoughts on the National Security Law for Hong Kong considered by the Central Authorities. That essay, 談國安法爭議： 以香港為家的我們的心聲 [On the National Security Law Controversy: Views of those Who Consider Hing Kong Home] was published as part of the 215th issue of Hong Kong 01 Weekly News (May 25, 2020) "Disputes on National Security Law: Voices of Those Who Consider Hong Kong Home."

The essay is worth a careful reading as much for what it says as for the way it is said.  Its most profound point is its orientation.  That orientation is one that explicitly draws attention to the perspective of those who consider Hong Kong home--not matter what--from others resident in Hing Kong, particularly foreigners and residents who, when things don't go their way, may emigrate.

我們對於當前的局面，應如何思考呢？對於同一問題，當然可以有不同的觀點和角度。我寫這篇文章，就是想表達一種我相信是「以香港為家的我們」的觀點和角度，這很可能有別於正在準備移民的人的觀點和角度，也可能有別於在海外的華人或外國人的觀點和角度，當然也有別於中國內地居民的觀點和角度。[How should we think about the current situation? For the same problem, of course, there can be different views and angles. When I write this article, I want to express a point of view and angle that I believe is "we who use Hong Kong as our home". This may be different from the point of view of people who are preparing to emigrate, and may also be different from those overseas. The views and perspectives of Chinese or foreigners are of course different from those of mainland Chinese residents.]

It is the voices of those who will stay, rather than the others, that perhaps ought to be given greater weight by those with the power to make decisions about the issues. One cannot help by recall the address by former Hong Kong leader Tung Chee-hwa, but perhaps to a different effect.

In a 24-minute speech broadcast to Hongkongers on Monday, Tung warned that the city had become a weak link in the security of the nation, while also echoing top Beijing officials’ reassurances that the new law would only go after a minority involved in relevant crimes. “If you do not plan to engage in acts of secession, subversion, terrorism or conspiring with foreign influence in connection with Hong Kong affairs, you will have no reason to fear,” he said, a day after thousands took to the streets to oppose the impending law and radical protesters returned to violence and vandalism. * * * “What’s more worrying is how some anti-China forces in the West have distorted the truth and openly supported anti-China radicals in Hong Kong … We can no longer tolerate how foreign forces have conspired with radicals in Hong Kong to put at risk China’s sovereignty, its authority and the legitimacy of the Hong Kong Basic Law.” (Hong Kong needs national security law because it is ‘easy target for hostile foreign opportunists’: former leader Tung Chee-hwa)

Hong Kong police fire tear gas, water cannons at protest against proposed security law

 ("One who identified herself by her last name, Lang, said: 

“There is nothing else we can do really. We have to do something that is helpful instead of just giving up.”)

And yet, like Tung, that urge to a taxonomy with political consequences weighs heavily in Professor Chen's essay. Not that this is wrong, in itself. And indeed, it is that commitment to Hong Kong that perhaps ought to weigh more for political discourse than that of those who may have a distinct commitment to Hong Kong, one measured by the likelihood that they might leave.  The value of an opinion, then, might be weighed against the amount of risk one incurs in taking that opinion.  Those with no exit (or who choose that option), then, take on a much greater risk than others. At the same time,  it does suggest a hierarchy of perspective that aligns with that of the Central Authorities. Here again, one encounters Nietzsche's Dionysian Hamlet. Yet for them, even among those who would call Hong Kong home, there appears value in the stratagem 打草驚蛇／打草惊蛇 (disturb the grass to scare the snake), and once that is done 走為上計／走为上计 (if all else fails, retreat). For Chen this produces a greater harm for those who call Hong Kong home, for those who will not flee. For him 李代桃僵 (sacrifice the plum tree to preserve the peach) appears the sounder strategy. It is a strategy of long term reduced expectation, of順手牽羊／顺手牵羊 (take the opportunity to pilfer the goat) of seeking whatever advantage on can, however small, from a position of disadvantage. 

Its conclusion provides the perfect foundation for considering its quite nuanced arguments:

在去年反修例運動高潮時，我曾感覺到，香港「一國兩制」的路正走得愈來愈窄，看不到任何希望。所謂山窮水盡疑無路，柳暗花明又一村，但願「國安法事件」的危機可以成為一個轉機，在看來瀕臨失敗邊緣的「一國兩制」事業崩潰之前，力挽狂瀾。更希望曾誤入歧途的青少年能回頭是岸，回歸尊重他人權利和遵守體現社會成員共同利益的法律的正路，我相信這是以香港為家的我們的衷心盼望。[At the climax of the Anti-Amendment Movement last year, I once felt that the road of "one country, two systems" in Hong Kong is getting narrower and narrower, and I see no hope. The so-called mountains and rivers are full of doubts, and there is another village in the dark. I hope the crisis of the "national security law incident" can become a turning point. Before the collapse of the "one country, two systems" cause that seems to be on the verge of failure, it will turn the tide. I also hope that the young people who have gone astray can return to the shore and return to the right path of respecting the rights of others and complying with laws that reflect the common interests of members of society. I believe this is our sincere hope that Hong Kong is the home.]

Beyond that, there are nods to all key elements.  To the  Central Authorities there is an unswerving commitment to the fundamental principled vision of the vanguard: "我們同屬一個命運共同體 [We all belong to a community of shared destiny]" and the emphasis on peace, security and prosperity.  As well, there is an echo of the key line of the Central Authorities--that the law is meant to target only a small number of unruly elements (see, e.g., Two Sessions 2020: Hong Kong national security law will only target ‘small group of people’, Vice-Premier Han Zheng says as Beijing hits back at critics).

To the pan-democrats there is the offer of the support for legalism, for a scrupulous attention to the forms and effects of the law thorough which the relationship between Hong Kong and the Central Government have been developed, and thus developed, applied: "In this regard, I hope that the drafters will be able to speak up and listen to the opinions of Hong Kong people. . . We also hope that this legislation can comply with the rule of law and the principle of non-retroactivity of criminal law."

And there is the warning in the form of a plea: "We hope that this National Security Law can reflect the spirit of "one country, two systems", respect the difference between the two systems, and will not directly apply the criminal regulations on national security in mainland China to Hong Kong, but take into account Hong Kong's common law system and the current The human rights standards applicable to Hong Kong seek to achieve an appropriate balance between safeguarding national security and individual rights and freedoms." (陳弘毅談國安法爭議; see also Two Sessions 2020:, supra ("The coverage of subversion under the new law was much wider than what was proposed in the local Article 23 bill back in 2003, according to Basic Law Committee member Albert Chen Hung-yee, a University of Hong Kong law professor. . . . Chen noted that the new law targeted subversive acts that were against the “state power”, instead of only the “central government” as in the 2003 version. . . it covers many more administrations, including Hong Kong and other local authorities,” he added.")).

But in the end, it appears that "One country" is a legal basis for the relationship between Hong Kong and the Central Authorities, and "Two Systems" is the way that legal discretion is to be exercised within the cage of regulation ("Xi Jinping vows 'power within cage of regulations' "(China Daily 2013)). And yet that is not the ultimate object.  For a West obsessed with Human and Political rights, that appears to be at the center of the current back and forth on the shaping of the One Country Two Systems framework.  Yet it is likely that this is not the case from the side of the Central Authorities.

(China Development Bank Backs Greater Bay Area With $50 Billion Lending Pledge).  

In the spirit of Professor Chen's perspective based analysis let me offer another: It is not the differences in perspective among those who call Hong Kong home against others that supply the entirety of the core perspectives that may matter.  There is another, on less concerned about legality and the formal status of Hong Kong and much more concerned about planning for the Pearl River region for the long term, a planning in which Hong Kong must necessarily be absorbed within a larger economic unit.  And that absorption, in turn, requires the re-construction and instrumentalization of what makes Hong Kong different. This is a perspective born of the construction of what I have called the Greater Pearl River City  (The Situation in Hong Kong--CPE Working Group on Empire: Shirley Ze Yu on Situating Hong Kong in the Construction of Post-Global Empire). Indeed, it is economic planning in light of the imperatives of the CPC Basic Line socialist modernization and Socialist Market Economy objectives, that may be at center stage (中共中央 国务院 关于新时代加快完善社会主义市场经济体制的意见 [Central Committee of the Communist Party of China Opinions on accelerating the improvement of the socialist market economic system in the new era]). From this perspective, the disciplining of Hing Kong assumes a collateral character, a necessary step in the process of creating this new coherent economic unit.  The friction occurs precisely because the 2047 timeline does not match the Central Authority's timeline for the construction of this economic unit. Evidence of this might be gleaned from reporting published in the wake of the Security Law challenge (China Development Bank Backs Greater Bay Area With $50 Billion Lending Pledge ("China Development Bank (CDB), the country's top policy lender, has pledged financing of 360 billion yuan ($50.4 billion) this year to support the development of the Greater Bay Area (GBA), a cluster of cities in southern China that the government wants to transform into a financial, technology and innovation powerful. . . CDB said it aims to build its Hong Kong branch into an international syndicated loan center and bookkeeping center in a bid to better serve cross-border businesses related to national strategies such as the GBA and the Belt and Road Initiative.")).  

The excellent essay in the original Chinese and crude English translation, follows below. 

Albert Chen Hung-yee 陳弘毅 served as a member of the Law Reform Commission of Hong Kong in 2002-08, a member of the Committee on Review of Post-Service Outside Work for Directorate Civil Servants in 2008-09, and a member of the Commission for Strategic Development of the Hong Kong Government in 2005-2012. He is currently a member of the Committee for the Basic Law of the Hong Kong Special Administrative Region under the Standing Committee of the National People's Congress of the People's Republic of China, a Justice of the Peace, and an honorary professor at the Renmin University of China, Tsinghua University, Peking University, Zhongshan University, Macau University, and the Institute of Advanced Studies in Social Sciences of Fudan University.

陳弘毅談國安法爭議： 以香港為家的我們的心聲
周報
撰文：特約撰稿人
2020-05-25 17:00
最後更新日期：2020-05-25 17:56

去年的反修例運動導致社會動盪，考慮移民的人數激增。上周五（5月22日），全國人大宣布即將作出關於香港國家安全立法的決定，又即時引起關於移民的查詢的激增，同時香港股市大跌。這些情景，令我想起上世紀八十年代以來港人對於香港前途的信心危機，例如中英香港前途談判瀕臨破裂的1983年9月24日的「黑色星期六」（當時港幣價值瘋狂下跌，「聯繫匯率」便是在該事件後建立的），以至1989年「六四」之後的移民潮。

撰文：陳弘毅

八十年代到現在，港人面對前途的不明朗和「一國兩制」的矛盾，經歷多場風雨。2017年，香港特別行政區慶祝回歸二十周年，國家主席習近平來訪，當時大家都認為「一國兩制」在二十年來的實踐雖然有些波折，總體來說還算是成功的。當時我們意想不到，到了2019年情況會急轉直下，因陳同佳涉嫌在台灣殺人而引致特區政府提出修例建議，香港出現了史無前例的政治風暴，即使在特首宣布無限期擱置或撤回修例的情況下，社會動亂仍愈演愈烈，出現了各種挑戰中央「底線」的言行，包括「港獨」、「黑暴」、「攬炒」等，「一國兩制」遂陷入前所未有的危機。後來因為疫情的緣故，暴亂有所紓緩，但前景怎樣，大家仍看不到任何光明和希望。

防暴警察在時代廣場對出位置拘捕示威者。（資料圖片／張浩維攝）

我們同屬一個命運共同體

一波未平，一波又起，人大即將作出的關於香港的國家安全立法的《決定》，在社會上引起軒然大波，不少人對香港前景非常擔憂。中央對這個《決定》作出解說，指出由於香港長期未能履行《基本法》第23條的國家安全立法的憲制責任，而香港又出現了嚴重危害國家安全的行為和活動，所以中央迫不得已要出手，行使其關於國家安全問題的事權。

中央方面表示，這個做法的目的不是改變或減損「一國兩制」，而是要保證「一國兩制」的順利和準確實施，使它能夠「行穩致遠」。中央認為，建議為港制定的國安法的目的，在於遏止分裂國家和顛覆國家政權的行為、恐怖活動和外國勢力對於香港事務的干預，如能達到這些目的，「一國兩制」便能順利地繼續推行，香港的繁榮和安定以至國際投資者在香港的利益才得以保障。

我們對於當前的局面，應如何思考呢？對於同一問題，當然可以有不同的觀點和角度。我寫這篇文章，就是想表達一種我相信是「以香港為家的我們」的觀點和角度，這很可能有別於正在準備移民的人的觀點和角度，也可能有別於在海外的華人或外國人的觀點和角度，當然也有別於中國內地居民的觀點和角度。

我這裏談的「以香港為家者」，有別於近來一些討論中所說的所謂「真香港人」。我不同意「真香港人」的提法，我認為這是歧視那些被認為不是「真香港人」的以香港為家者。我相信以香港為家的人同屬一個命運共同體，須同舟共濟，共渡時艱。我相信絕大多數以香港為家的人都希望香港能夠恢復昔日的繁榮和安定，人們可以安居樂業，平安和自由地生活，免於恐懼，並能充分發展其人格和天賦，安身立命，有尊嚴地生活；持不同政見者可以互相寬容和尊重，而不是互相謾罵、人身攻擊和毁謗。這些社會條件，港人曾經享受過，但在去年下半年的反修例運動中，是並不存在的。提倡所謂「攬炒」的人士，是在破壞這些條件，他們正在損害絕大多數以香港為家者的基本權益。以香港為家的我們，必須堅守理性和務實精神，明辨是非，認識所謂「攬炒」是絕對違反「以香港為家者」的共同利益的。
陳弘毅指出，相信絕大多數以香港為家的人都希望香港能夠恢復昔日的繁榮和安定，人們可以安居樂業，平安和自由地生活，免於恐懼。（資料圖片）

陳弘毅指出，相信絕大多數以香港為家的人都希望香港能夠恢復昔日的繁榮和安定，人們可以安居樂業，平安和自由地生活，免於恐懼。（資料圖片）

香港不享有國安立法專權

要明白香港目前的情況，尤其是關於國家安全立法的爭論，必須追溯到《基本法》的起源及其制度設計。《基本法》在上世紀八十年代後半期起草，在1990年由全國人大通過，在1997年實施。《基本法》的起草者認識到，香港特別行政區作為中華人民共和國的一部份，當然必須具備保障中華人民共和國國家安全的立法。世界各國都有保障國家安全的立法，在有地方自治安排的國家，無論是聯邦制國家（如美、加、澳洲），還是單一制國家（如英國—蘇格蘭在英國境內享有高度自治權），關於國家安全問題的立法權都是掌握在中央政府或聯邦政府的，通常不會授予地方政府。但是，《基本法》卻在這方面作出了特殊的安排，《基本法》第23條規定，「香港特別行政區應自行立法禁止」某些危害國家安全的行為，如叛國、顛覆、分裂國家、煽動叛亂、竊取國家機密等。

第23條之所以這樣規定，是因為當時中國內地還未有關於危害國家安全罪的法律，當時中國的《刑法》只有關於「反革命罪」的規定，這些規定相當於其他國家的危害國家安全罪的規定。根據「一國兩制」原則，香港是資本主義社會，社會主義法制下的反革命罪並不適用於香港，因此便有第23條的特殊安排，規定由特別行政區自行立法處理有關的危害國家安全的罪行。這項規定不只是賦予特區制定有關法例的權力，也同時要求特區承擔一種法律上的義務，也就是一般所說的憲制責任，去完成有關立法。

第23條並不是說，香港特別行政區享有對於國家安全立法的獨有或專屬（exclusive）立法權；中央並沒有放棄或移轉其關於國家安全立法的權力。因此，就國家安全問題進行立法的權力，是中央和特區共有或共享（concurrent）的權力。由中央和地方政府共享某些權力的概念在外國憲制中也是廣泛存在的：即是關於某些事項，中央或聯邦政府有獨有或專屬的立法權，關於另一些事項，地方政府有獨有或專屬的立法權，第三種情況是一些事項，中央和地方政府同時享有立法權。第23條便屬於這種情況，它的制度安排是，首先由特別行政區承擔國家安全立法的義務及行使有關立法權。但在特區成立二十三年後仍未履行此基本憲制責任的情況下，由中央行使其權力去處理一些已在特別行政區存在的嚴重危害國家安全的情況，在法理上完全是可以成立的：因為國家安全立法保障的主要是中央或國家的利益，而不只是特別行政區自身的利益。

人大副委員長王晨指出「港版國安法」針對的是「分裂國家、顛覆政權、組織實施恐怖活動及外國和境外勢力干預」等四項危害國家安全的行為，香港普通市民的生活不會受此影響。（資料圖片／新華社）

《決定》的草案如在本周獲得人大通過，下一步便是進行適用於香港的《國安法》的起草工作。由於該《國安法》將根據《基本法》第18條列入附件三並在香港直接實施，毋須經過本地立法的適應化程序，所以必須保證該《國安法》能與香港法制銜接和協調；在這方面，希望起草者能廣開言路，聽取港人的意見。我們希望這部立法起草時可參考香港特區政府在2003年起草的《國家安全（立法條文）條例》草案，當時特區政府做了大量的研究工作，以保證有關草案能符合相關的國際人權標準。我們希望這部《國安法》能體現「一國兩制」的精神，尊重兩制的差異，不會把中國內地的關於國家安全的刑事規定直接引用至香港，而是考慮到香港的普通法制度和現時適用於香港的人權標準，務求取得保障國家安全以及個人權利和自由之間的適當平衡。

我們也希望這部立法可符合法治原則和刑法不溯既往原則。法治原則的其中一個重要要求，便是法律條文必須清晰明確，讓市民可以預測到各種行為的法律後果：哪些行為是合法、哪些是違法的。這個法律的運作的可預見性的要求，是國際公認的法治準則之一。根據適用於香港的國際人權標準，關於刑事罪行的法律條文不應有追溯力，有關條文只能規管該法律正式頒布生效後發生的行為。此外，我留意到特首林鄭月娥在上周五曾經說過，國安法的制定不會影響香港的司法獨立、法院的裁決權和終審權；她又表明，她相信制定《國安法》後，主要執行它的是香港的機關。我們希望特區政府能向中央反映港人的意見，保證以上原則能體現於最終通過的《國安法》的內容。

有示威者舉起代表「五大訴求　缺一不可」的手勢。（盧翊銘攝）

危機也帶來挽救一國兩制轉機

中國傳統有儒家和法家思想，從儒家的角度來看，理想的情況是人民能通過道德教化而自覺履行其道德和社會義務，無須以刑事法律管制他們。法家的想法是，人性有其惡的一面，所以必須通過國家制定有強制性的法律，賞罰分明，讓人們有法可依，這樣社會秩序便得以維持。現代法治思想雖然重視人權，但不排斥刑法對於犯罪的阻嚇作用，又認為犯罪者受到刑事懲罰，乃符合公義原則。人大副委員長王晨就人大決定草案向人大作出的說明中提到，國安法的目的在於「防範、制止和懲治」有關危害國家安全的行為。我們希望，在《國安法》制定後，市民能自願遵守其規範；如果《國安法》能有效阻嚇有關的危害國家安全的行為，便毋須通過檢控和判罪來執行《國安法》。這是比較理想的情況。我相信以香港為家者都殷切期望，香港社會秩序能恢復正常，「一國兩制」也能回到正軌。

在去年反修例運動高潮時，我曾感覺到，香港「一國兩制」的路正走得愈來愈窄，看不到任何希望。所謂山窮水盡疑無路，柳暗花明又一村，但願「國安法事件」的危機可以成為一個轉機，在看來瀕臨失敗邊緣的「一國兩制」事業崩潰之前，力挽狂瀾。更希望曾誤入歧途的青少年能回頭是岸，回歸尊重他人權利和遵守體現社會成員共同利益的法律的正路，我相信這是以香港為家的我們的衷心盼望。

作者簡介：

陳弘毅

香港大學法律學院

鄭陳蘭如基金憲法學教授

上文節錄自第215期《香港01》周報（2020年5月25日）《國安法爭議： 以香港為家的我們的心聲》。

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Chen Hongyi on the National Security Law Controversy: View of Those Who Consider Hong Kong Home
weekly
Writer: Contributing Writer
2020-05-25 17:00
Last update date: 2020-05-25 17:56

Last year ’s anti-amendment campaign led to social unrest, and the number of immigrants considered surged. Last Friday (May 22), the National People ’s Congress announced that it was about to make a decision on Hong Kong ’s national security legislation, which immediately caused a surge in enquiries about immigration and the Hong Kong stock market plummeted. These scenes remind me of the crisis of Hong Kong people's confidence in Hong Kong's future since the 1980s, such as the "Black Saturday" of September 24, 1983, when the Sino-British negotiations on the future of Hong Kong were on the verge of rupture. The "exchange rate" was established after the incident), and even the immigration wave after the "June 4th" in 1989.
Written by: Chen Hongyi

From the 1980s to the present, Hong Kong people have experienced many ups and downs in the face of the uncertain future and the contradiction between "one country, two systems." In 2017, the Hong Kong Special Administrative Region celebrated the twentieth anniversary of its return. President Xi Jinping came to visit. At that time, everyone thought that although the practice of "one country, two systems" in the past two decades had some twists and turns, overall it was still a success. At that time, we did not expect that the situation will turn sharply in 2019. Chen Tongjia ’s suspected murder in Taiwan led to the SAR government ’s proposal to amend the law. There was an unprecedented political storm in Hong Kong. Social unrest continues to intensify, and various words and deeds challenging the "bottom line" of the central government have appeared, including "Hong Kong independence", "black violence", and "speculation", and "one country, two systems" has fallen into an unprecedented crisis. Later, because of the epidemic, the riots were alleviated, but what is the prospect, we still do not see any light and hope.

Riot police arrested demonstrators outside of Times Square. (Profile picture / Photo by Zhang Haowei)

We all belong to a community of shared destiny

After a wave of turmoil and a wave of turbulence, the National People's Congress' upcoming "Decision" on Hong Kong's national security legislation has caused an uproar in society, and many people are very worried about Hong Kong's prospects. The Central Government explained this "Decision", pointing out that because Hong Kong has long failed to fulfill the constitutional responsibility of the National Security Legislation of Article 23 of the Basic Law, and Hong Kong has also committed acts and activities that seriously endanger national security, the Central Government has no choice but to take action to exercise its authority over national security issues.

The central government stated that the purpose of this approach is not to change or detract from "one country, two systems," but to ensure the smooth and accurate implementation of "one country, two systems," so that it can "strive for the long term." The central government believes that the purpose of the proposed national security law for Hong Kong is to curb acts of splitting the country and subverting state power, terrorist activities, and interference of foreign forces in Hong Kong affairs. If these goals can be achieved, "one country, two systems" can be smoothly implemented In order to ensure the prosperity and stability of Hong Kong and even the interests of international investors in Hong Kong.

How should we think about the current situation? For the same problem, of course, there can be different views and angles. When I write this article, I want to express a point of view and angle that I believe is "we who call Hong Kong home". This may be different from the point of view of people who are preparing to emigrate, and may also be different from those overseas. The views and perspectives of Chinese or foreigners are of course different from those of mainland Chinese residents.

The "Hong Kong home" I am talking about is different from the so-called "true Hong Kong people" mentioned in some recent discussions. I disagree with the reference to "true Hong Kong people". I think this discriminates against those who are not considered "true Hong Kong people" and use Hong Kong as their home. I believe that people who take Hong Kong as their family belong to a community of shared destiny, and they must all work together to overcome difficulties. I believe that most people who live in Hong Kong hope that Hong Kong can restore its former prosperity and stability. People can live and work in peace, live freely and free from fear, and fully develop their personality and talents to live their lives in peace and dignity. Dissidents can tolerate and respect each other, rather than abuse, personal attacks and slander. Hong Kong people once enjoyed these social conditions, but they did not exist in the anti-revision movement in the second half of last year. Those who advocate the so-called "speculation" are undermining these conditions. They are harming the basic rights and interests of the vast majority of Hong Kong-based families. We who are based in Hong Kong must adhere to a rational and pragmatic spirit, make a clear distinction between right and wrong, and understand that the so-called "speculation" is absolutely contrary to the common interests of "Hong Kong as a family".

Chen Hongyi pointed out that I believe that most people who call Hong Kong home hope Hong Kong can restore its former prosperity and stability. People can live and work in peace, live peacefully and freely, and be free from fear. (Profile picture)

Hong Kong does not enjoy the power of national security legislation

To understand the current situation in Hong Kong, especially the debate on national security legislation, it must be traced back to the origin of the Basic Law and its system design. The Basic Law was drafted in the second half of the 1980s, adopted by the National People's Congress in 1990, and implemented in 1997. The drafters of the Basic Law realized that the Hong Kong Special Administrative Region, as part of the People ’s Republic of China, must of course have legislation to guarantee the national security of the People ’s Republic of China. All countries in the world have legislation to ensure national security. In countries with local self-government arrangements, whether it is a federal system (such as the United States, Canada, and Australia) or a unitary system (such as the United Kingdom-Scotland enjoys a high degree of autonomy in the United Kingdom), Legislative powers on national security issues are controlled by the central government or the federal government, and are usually not granted to local governments. However, the Basic Law has made special arrangements in this regard. Article 23 of the Basic Law stipulates that "Hong Kong Special Administrative Region shall legislate itself to prohibit" certain acts that endanger national security, such as treason, subversion, secession, and incitement to rebellion. , Stealing state secrets, etc.

Article 23 was stipulated because there was no law on the crime of endangering national security in mainland China at that time. At that time, China's Criminal Law only had provisions on "counter-revolutionary crimes", which were equivalent to crimes against national security in other countries. Provisions. According to the principle of "one country, two systems", Hong Kong is a capitalist society, and the counter-revolutionary crime under the socialist legal system does not apply to Hong Kong. Therefore, there is a special arrangement in Article 23, which provides that the Special Administrative Region shall legislate to deal with crimes against national security. This provision not only gives the SAR the power to make relevant laws, but also requires the SAR to assume a legal obligation, which is generally called constitutional responsibility, to complete the relevant legislation.

Article 23 is not to say that the Hong Kong Special Administrative Region enjoys exclusive or exclusive legislative power over national security legislation; the Central Government has not waived or transferred its power over national security legislation. Therefore, the power to enact legislation on national security issues is the power shared or shared by the central government and the SAR. The concept of sharing certain powers between the central and local governments is also widespread in foreign constitutional systems: that is, on certain matters, the central or federal government has exclusive or exclusive legislative power, and on other matters, local governments have unique There are or exclusive legislative powers. The third case is some matters both central and local governments enjoy legislative powers. Article 23 belongs to this situation. Its institutional arrangement is that, first of all, the Special Administrative Region shall bear the obligations of national security legislation and exercise relevant legislative powers. However, in the case where the basic constitutional responsibility has not been fulfilled 23 years after the establishment of the Special Administrative Region, it is legally possible for the Central Bank of China to exercise its power to deal with situations that already exist in the Special Administrative Region and seriously endanger national security.  Because the national security legislation mainly protects the interests of the central government or the state, not just the special administrative regions themselves.

Wang Chen, deputy chairman of the National People's Congress, pointed out that the "Hong Kong version of the National Security Law" is aimed at four actions that endanger national security, including "dividing the country, subverting the regime, organizing terrorist activities and interfering with foreign and foreign forces." influenced by. (Profile picture / Xinhua News Agency)

If the draft of the "Decision" is approved by the National People's Congress this week, the next step is to draft the "National Security Law" applicable to Hong Kong. Since the National Security Law will be listed in Annex III in accordance with Article 18 of the Basic Law and will be directly implemented in Hong Kong, without the need to go through the adaptation process of local legislation, it is necessary to ensure that the National Security Law can be connected and coordinated with the Hong Kong legal system; In this regard, I hope that the drafters will be able to speak up and listen to the opinions of Hong Kong people. We hope that this legislation can be drafted with reference to the draft National Security (Legislative Provisions) Ordinance drafted by the Hong Kong SAR Government in 2003. At that time, the SAR Government did a lot of research work to ensure that the relevant drafts can meet the relevant international human rights standards. We hope that this National Security Law can reflect the spirit of "one country, two systems", respect the difference between the two systems, and will not directly apply the criminal regulations on national security in mainland China to Hong Kong, but take into account Hong Kong's common law system and the current The human rights standards applicable to Hong Kong seek to achieve an appropriate balance between safeguarding national security and individual rights and freedoms.

We also hope that this legislation can comply with the rule of law and the principle of non-retroactivity of criminal law. One of the important requirements of the rule of law principle is that the legal provisions must be clear and clear, so that citizens can predict the legal consequences of various behaviors: which behaviors are legal and which are illegal. The requirement of predictability in the operation of this law is one of the internationally recognized rule of law. According to the international human rights standards applicable to Hong Kong, the legal provisions on criminal offenses should not be retroactive. The relevant provisions can only regulate actions that occur after the law is formally promulgated and entered into force. In addition, I noticed that Chief Executive Lin Zheng Yuee said on Friday that the enactment of the National Security Law will not affect Hong Kong ’s judicial independence, the court’s power of adjudication and final adjudication; she also stated that she believed that after the National Security Law It is the organs of Hong Kong that implement it. We hope that the SAR Government can reflect the views of Hong Kong people to the central government and ensure that the above principles can be reflected in the content of the National Security Law that was finally passed.

Some demonstrators raised gestures representing "the five major demands". (Photo by Lu Yiming)

The crisis also brought about an opportunity to save one country, two systems

Chinese tradition has Confucianism and legalism. From the perspective of Confucianism, the ideal situation is that the people can consciously fulfill their moral and social obligations through moral education, and there is no need to control them with criminal laws. The idea of ​​the legalists is that human nature has its evil aspects, so it is necessary to enact compulsory laws through the state, with clear rewards and penalties, so that people have a law to follow, so that social order can be maintained. Although modern legal thought attaches importance to human rights, it does not exclude the deterrent effect of criminal law on crimes, and also believes that criminals are subject to criminal punishment, which is consistent with the principle of justice. Wang Chen, vice chairman of the National People's Congress, mentioned to the National People's Congress on the draft decision of the National People's Congress that the purpose of the National Security Law is to "prevent, stop, and punish" acts that endanger national security. We hope that after the enactment of the National Security Law, citizens can voluntarily abide by its norms; if the National Security Law can effectively deter related acts that endanger national security, there is no need to implement the National Security Law through prosecution and conviction. This is an ideal situation. I believe that those who call Hong Kong home earnestly hope that the social order in Hong Kong will return to normal and that "one country, two systems" will return to the right track.

At the climax of the Anti-Amendment Movement last year, I once felt that the road of "one country, two systems" in Hong Kong is getting narrower and narrower, and I see no hope. The so-called mountains and rivers are full of doubts, and there is another village in the dark. I hope the crisis of the "national security law incident" can become a turning point. Before the collapse of the "one country, two systems" cause that seems to be on the verge of failure, it will turn the tide. I also hope that the young people who have gone astray can return to the shore and return to the right path of respecting the rights of others and complying with laws that reflect the common interests of members of society. I believe this is our sincere hope that Hong Kong is the home.

About the Author:

Chen Hongyi

The Law School of the University of Hong Kong

Zheng Chenlanru Fund Professor of Constitution

The above excerpt is from the 215th issue of "Hong Kong 01" Weekly News (May 25, 2020) "Disputes on National Security Law: Our Voices with Hong Kong as the Home".