The Situation in Hong Kong: Description of Draft "Law of the People's Republic of China on the Maintenance of National Security"《中华人民共和国香港特别行政区维护国家安全法（草案）》

China unveils details of national security law for Hong Kong amid backlash

Hong Kong is coming one step closer to a National Security Law.  Xinhua News Agency, Beijing, reported on June 20  that

commissioned by the chairman’s meeting, the person in charge of the Legislative Affairs Working Committee of the Standing Committee of the National People’s Congress made a presentation on the 19th meeting of the Standing Committee of the 13th National People’s Congress on The description of the Security Law (Draft) is summarized below. 电 受委员长会议委托，全国人大常委会法制工作委员会负责人6月18日向十三届全国人大常委会第十九次会议作关于《中华人民共和国香港特别行政区维护国家安全法（草案）》的说明，摘要如下。

Formulation of the Law on the Maintenance of National Security of the Hong Kong Special Administrative Region is an important task to implement the spirit of the Fourth Plenary Session of the 19th Central Committee of the Party and to implement the Decision of the National People’s Congress on Establishing and Perfecting the Legal System and Implementation Mechanism of the Hong Kong Special Administrative Region to Maintain National Security. 制定香港特别行政区维护国家安全法是贯彻党的十九届四中全会精神、落实《全国人民代表大会关于建立健全香港特别行政区维护国家安全的法律制度和执行机制的决定》的重要任务

"The much-anticipated legislation, which has provoked deep concerns in Washington and Europe, includes a national security office for Hong Kong to collect intelligence and handle crimes against national security, the official Xinhua news agency reported. " (China unveils details of national security law for Hong Kong amid backlash).

This post includes the text of the description of the Draft National Security Law as circulated through Xinhua News Agency, in the original Chinese along with a crude English translation, along with my brief reflections.  Here is the core point I would be inclined to emphasize:

Much analysis will focus on the details of the National Security Law for signs of the extent to which Western liberal democratic notions of civil and political rights will be transformed (eroded) to better align with the CPC's primary focus on economic, social, and cultural rights, with an emphasis on security and the development of productive forces.  That analysis, however, misses a fundamental point of the legislation.  The National Security Law is essential to the protection of the integrity of the core responsibility of the CPC, as a vanguard party charged with the task of moving all of the nation toward the goal of the establishment of a communist society in China.  Hong Kong may be permitted to deviate from a uniform march toward that core objective--to strive for that perfection at its own pace and consist with its own stage of development--but that different pace does not change the direction of the political development of Hong Kong.  Sooner or later, Hong Kong must advance toward the establishment of a communist society, and must do so in any case, under the leadership of of the CPC. The rest is merely a matter of local context, of timing, and of the pragmatic realities of balancing an unalterable core political goal with the necessity of every era of historical development.  

The perfection of Chinese Marxist-Leninism is a central element of the political work of the Chinese Communist Party. The European/Western (Soviet and allied) approached (1) Marxism as a normative systems of values and (2) Leninism as the system of principles of political organization of vanguard leadership of the nation as (a) permanently fixed and (b) immutable. As a consequence, the fundamental work of a vanguard (Communist) Party was to perfect the individual (the ideal worker, the ideal member of the masses into whom the correct values could be inculcated and naturalized. This represents a variant of the approach of Western liberal democratic political norms that is grounded as well on notions of progress through the elimination of "false consciousness" through substantial societal disciplinary mechanisms. Western liberal democracy and Western Marxist-Leninism views its ideology the way it embraced its religion--as perfect when received, and thus, as reducing politics to an interpretive exercise.

That, of course, is both the genius of that system (whether expressed as liberal democracy or as Marxist-Leninism): the system (and its values) are received as perfect--the manifestation (implementation) of that perfection is not.  As a result society is organized to maximize the effects of an iterative process through which the individual is disciplined and perfected through a constant measurement, an eternal assessment, against the standards of perfection to be realized by the perfect internalization of the ideological system received.  Religion has been the most successful in developing the language of this process--but modern states have not been less effective--the United States through the legalization of its political and normative systems, and the Soviet Union through its (far more imperfectly realized) system of Communist bureaucratization. In any case, where the ideology is perfect and immutably, it is left for organs of societal control to develop mechanism,s for the interpretation of perfection and its application to individuals and institutions subject to the perfection of the normative principles on which the collective order (economic, political, cultural, ethnic, religious, etc.).  Here the failure to adhere strictly to the immutable perfection of the ideology is fatal to the integrity of the system. That is something Soviet Communism experienced, and it accounts, at times, for the turbulence of Western style cultural revolutions, as groups seek to seize control of the mechanisms of interpretation of the fundamental ideology.

Chinese Marxist-Leninism views this as effectively rightist error. Rather than center the perfection of the masses, Chinese Marxist-Leninism has evolved into an iterative dialogue between ideological development and national historical context. It is within that iterative process--ideological development pushes forward the (progressive) project of moving the collective toward the establishment of a communist which then moves society to new era's of development (under the leadership of the vanguard)--that it is possible to speak about the perfection of the individual and mass organizations as expressions of this process. As a consequence, the core ideology of the political-economic system is understood, at least in part, as a work in progress, the content of which will be heavily dependent of the stage of historical development and the context in which it is to be manifested. The core remains unchanged--the ultimate obligation to establish a communist society through the leadership of a vanguard (Communist) party whose own legitimacy is dependent on delivering concrete progress toward that goal and ensuring a forward (always forward) movement of society through the historical stages of development through which it is necessary (whatever they may bring) to the ultimate end.  Failure, of course, is fatal to the legitimacy of the vanguard, and threatens the integrity of the fundamental ideology on which the system is predicated. 

As a result, and certainly in a more or less ideologically stable way since the 1990s, the CPC has driven political reform forward (as the vectors of direction are understood within the perspective of their founding organizational premises) through the perfection of the expression of its ideological line "to suit the times", and then focused on the discipline of the masses to align their behavior with what suits the times (from an ideological perspective). Perfection of ideology, expressed in the perfection of the cage of regulation through which it is expressed, is a necessary predicate to the (consequential) perfection of the masses, mass organizations, and the discipline of error committed by either. As a consequence, one can perfect the individual (and the collectives into which individuals are embedded) only through and after one perfects the core ideology and its expression in policy to suit the historical era, and always with the understanding that such perfection is merely a step toward the ultimate perfection of the establishment of a communist society within China.

But there is nothing in the iterative process that suggests that progress must be undertaken uniformly.  That is, there is nothing that suggests that this forward moving iterative process must occur in the same form and in lock step throughout the country and among all of its people an institutions.  Indeed, the reverse has always been true.  Beyond the need for strict uniformity within the ranks of the Chinese Communist Party, the essence of the CPC's political work is grounded on the notion that the various parts of the Chinese collective must be brought forward toward the ultimate goal with an eye toward their context and historical development. It follows that there is no inconsistency in modulating the actual application of core ideology to suit the place and times and the local context, balanced against pragmatic needs of the state in its global relations.

That difference, in effect, provides the ideological basis for One Country Two Systems.  For the West, of course, that meant the imposition of a political settlement that was (like most of the West's ideology, simply because that is the way Western people understand things) permanent.  For the CPC, however, it meant only a recognition that Hong Kong was in a different stage of development, that this stage of development could be tolerated because of its pragmatic benefits (at least for a time, e.g. through 2047), but that the underlying core ideological objectives could not be threatened.  That is, that whatever differences were tolerated, Hong Kong, like the rest of China, must be managed toward the realization of the ultimate goal that supports the legitimacy of the current political model (at the risk of repetition but one worth making in a world populated by euphemism--the establishment of a communist society throughout China).  This is simply put, the only legitimate way for understanding things from out of the premises on which the legitimacy of the current Chinese political-normative system is built.  It is self evident, and thus inconceivable to accept principled alternatives, that this framework both permits and limits and ultimately directs the relation of the Hong Kong special waivers to the governance of the rest of China as all parts move toward yet another new era of historical development.  As a consequence, the objections of the West are viewed as mere political interference by the Chinese, the objections of local Hong Kong people as proof of the need for stronger measures to naturalize the governing ideology.  And for the West, the intentions of the Chinese national authorities are viewed as a fundamental breach of promises and an attack on universal core values.   

Thus understood, the National Security Law, like the law respecting the national anthem and national symbols, becomes easier to understand. Note here I am not suggesting acceptance, merely that an understanding from the internal perspective of the ideology from which they are legitimated is necessary for appropriate analysis, and then political judgement based on the politics of those with the power to make and drive political decision making. And, indeed, the contents of the National Security Law as described through the announcement in Xinhua on 20 June 2020, make that approach quite clear.

China unveils details of national security law for Hong Kong amid backlash

Much analysis will focus on the details of the National Security Law for signs of the extent to which Western liberal democratic notions of civil and political rights will be transformed (eroded) to better align with the CPC's primary focus on economic, social, and cultural rights, with an emphasis on security and the development of productive forces. That analysis, however, misses a fundamental point of the legislation. The National Security Law is essential to the protection of the integrity of the core responsibility of the CPC, as a vanguard party charged with the task of moving all of the nation toward the goal of the establishment of a communist society in China. Hong Kong may be permitted to deviate from a uniform march toward that core objective--to strive for that perfection at its own pace and consist with its own stage of development--but that different pace does not change the direction of the political development of Hong Kong. Sooner or later, Hong Kong must advance toward the establishment of a communist society, and must do so in any case, under the leadership of of the CPC. The rest is merely a matter of local context, of timing, and of the pragmatic realities of balancing an unalterable core political goal with the necessity of every era of historical development.

Beijing to have sweeping powers over Hong Kong security law

At the same time, there is much of value in studying the details of the description of the draft.  The emphasis on the perfection of the legal and constitutional system are a clear signal of the overall importance of the notion of iterative perfectibility at the heart of Chinese New Era Marxist-Leninism. The embedding of "Two Systems" within the overall constraints of Chinese Marxist-Leninism, is meant to drive home the point both as to the impermanence of the waivers and its character, as well as its need ultimately to accept the constraints of a vanguard party people's democratic dictatorship framework within which such deviations will be permitted. The key here is the impermanence of the character of the Two Systems waivers--the latitude permitted today (with respect to civil and political rights) is unlikely to survive long as Hong Kong is managed into its own new era of development.  The expectation is, of course, that such civil and political rights exceptions will wither as the political culture of Hong Kong becomes better aligned with that of the rest of China. The National Security Law is an instrument in that (long term) process.

As for much of the text of the National Security Law there is a symmetry that is meant to reinforce the contingency of Hong Kong's special status  as entirely dependent on the Central authorities, and as well, on conformity to the core principles of the Chinese political-economic model.  Thus, for example. the Honk Kong government is given authority to set up its national security committee, headed by the HK Chief Executive along with three secretaries and the head of local security.  However the committee itself is to be advised by officials appointed by and serving as the means of oversight, by the central authorities in Beijing.  Likewise, much of the implementation of the national security law is to be undertaken by local officials and their security apprentice (police, and the like). These would include the creation of a new unit dedicated to national security cases.  The exact details of each of the described offenses will also be described with greater specificity.  Hong Kong authorities will have jurisdiction over this entire apparatus, except in those circumstances, still to be specified, in which the central authorities choose to take over the investigation. In addition, though local police will rely on their traditional authority, and local judges will be designated to hear cases, the central authorities will establish a National Security Agency office in Hong Kong with broad authority to supervise and advise local officials (presumably including the judiciary, though that is not clear) on strategy, collect information, and to some extent manage investigation. Lastly, the National Security Law will preserve the essence of Hong Kong's rule of law superstructure (presumption of innocence, and conformity to the international human rights conventions).  However, where local law (or its interpretation) is inconsistent with the national security law, the national security law  prevails, with ultimate authority over such matters (including the interpretation of the HK National Security Law) will be vested in the Standing Committee of the National People’s Congress.

Hong Kong security law: What is it and is it worrying?

The provision that is most likely to raise eyebrows is the one that provides the strongest evidence of the ideological premises driving the National Security law: the "four types of crimes including the crime of secession, subversion of state power, terrorism, collusion with foreign or foreign forces endangering national security," They are all ambiguous, in the Chinese style, though there is some constraint by alignment with the CPC Line and the scope of its initiatives. The key term, though, the collusion with foreign forces, suggests not just the need to pull Hong Kong away from its role as an international city, but also the view that in the face of the unalterable incompatibility of national and foreign models of politics and political norms, any foreign interaction might potentially be understood as polluting.  Certainly at its broadest, it opens all foreign engagement to scrutiny.  At its narrowest, it provides a basis for accountability for the political work of individuals aligned with foreigners.  More troubling for the current situation in Hong Kong is its effects on the relationships between Hong Kong people and international civil society already well integrated into Hong Kong's political life. Hong Kong influential academics have suggested something like a middle ground in at least an initial approach to application of the provision.

The term “collusion” is found in the nation’s criminal law, but no one had been charged with colluding with foreign states since it came into effect in 1979, according to Fu Hualing, law dean at the University of Hong Kong.  Fu said he believed lobbying foreign countries to impose sanctions on China could constitute “collusion” with external forces. “I don’t think labour unions or non-governmental organisations receiving funding from foreign organisations, or holding seminars in Hong Kong, could constitute such an offence,” said Fu, who specialises in mainland China’s criminal law. (‘Collusion’ question: could new security law language make it illegal for Hongkongers to lobby for sanctions on China or accept money from foreign groups?)

Ironically, this provision is unfortunate to the extent it is read as evidencing Chinese conceptions of foreign interactions.  If that is the case, it might provide liberal democratic and other states with evidence that Chinese projections of soft power is itself driven by this premise and that therefore ought to be carefully scrutinized.  It may certainly add weight to the allegations of some Western states of Chinese collusion within their territory. The effect, then, may be to accelerate the trend toward decoupling that Chinese officials suggest is not in anyone's interest.  Here China may itself be driving that conversation, and its effects in the West may not produce positive results for Chinese strategic objectives, especially those tied to the Belt and Road Initiative. But that remains to be seen.

In any case, the National Security Law appears to suggest: to be in accord with the time, it is necessary to beware of misconstruing the situation. It suggests a marrtiage brought about by forces beyond one's control.

__________

The person in charge of the Legislative Affairs Commission made a statement to the Nineteenth Session of the Standing Committee of the 13th National People's Congress on the "Law of the People's Republic of China on the Maintenance of National Security (Draft)"

ORIGINAL HERE:  http://npc.people.com.cn/n1/2020/0620/c14576-31753969.html

18:18, June 20, 2020 Source: Xinhua

Xinhua News Agency, Beijing, June 20, commissioned by the chairman’s meeting, the person in charge of the Legislative Affairs Working Committee of the Standing Committee of the National People’s Congress made a presentation on the 19th meeting of the Standing Committee of the 13th National People’s Congress on The description of the Security Law (Draft) is summarized below.

　　Formulation of the Law on the Maintenance of National Security of the Hong Kong Special Administrative Region is an important task to implement the spirit of the Fourth Plenary Session of the 19th Central Committee of the Party and to implement the Decision of the National People’s Congress on Establishing and Perfecting the Legal System and Implementation Mechanism of the Hong Kong Special Administrative Region to Maintain National Security.

On May 28, 2020, the Third Session of the Thirteenth National People's Congress passed the "Decision of the National People's Congress on Establishing and Improving the Legal System and Enforcement Mechanism for the Maintenance of National Security in the Hong Kong Special Administrative Region" (hereinafter referred to as "Decision") Effective date. This is the highest state authority to implement the spirit of the Fourth Plenary Session of the Nineteenth Central Committee of the Party. In accordance with the Constitution and the relevant provisions of the Hong Kong Basic Law, adapt to the new situation and needs, adhere to and improve the "one country, two systems" system, and establish and improve the Hong Kong Special Administrative Region at the national level The important institutional arrangements for the legal system and enforcement mechanism to maintain national security provide a constitutional basis for the next step in formulating relevant laws. Formulating relevant laws based on the "Decision" is a key link and an important part of completing this important institutional arrangement. Article 6 of the "Decision" stipulates: "Authorize the Standing Committee of the National People's Congress to formulate relevant laws on the establishment and improvement of the Hong Kong Special Administrative Region's legal system and enforcement mechanism to safeguard national security, and effectively prevent, stop and punish any division of the country, subversion of state power, and organization The implementation of terrorist activities and other activities and activities that seriously endanger national security and the activities of foreign and foreign forces interfering in the affairs of the Hong Kong Special Administrative Region. The Standing Committee of the National People’s Congress decided to include the above-mentioned relevant laws in Annex III of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China. The implementation will be announced locally by the Hong Kong Special Administrative Region." During the two sessions of this year, many NPC deputies, members of the National Committee of the Chinese People's Political Consultative Conference and relevant parties all proposed that the Standing Committee of the National People's Congress should formulate the Hong Kong Special Administrative Region as soon as possible in accordance with the relevant decisions of the National People's Congress. Relevant laws to promote the construction of the Hong Kong Special Administrative Region’s national security system and ensure that relevant laws are effectively implemented in the Hong Kong Special Administrative Region.

The description of the draft Decision of the Third Session of the 13th National People's Congress made it clear that five basic principles must be followed and grasped at the national level to establish and improve the legal system and enforcement mechanism of the Hong Kong Special Administrative Region to safeguard national security, namely: resolutely safeguard national security, Uphold and improve the "one country, two systems" system, adhere to the rule of law in Hong Kong, resolutely oppose foreign interference, and effectively protect the legitimate rights and interests of Hong Kong residents. Regarding the core elements of the Hong Kong Special Administrative Region’s arrangements for maintaining the national security system, basic provisions have been made in the "Decision" of the National People's Congress. The relevant laws on safeguarding national security of the Hong Kong Special Administrative Region to be formulated are the full-scale development, full implementation and concrete implementation of the spirit of the Third Session of the 13th National People’s Congress and the content of the “Decision”. Standardized and clear.

　　Recently, the relevant central government departments have earnestly carried out the drafting of relevant laws, and have repeatedly heard the opinions and suggestions of the Chief Executive of the Hong Kong Special Administrative Region, Lin Zhengyue, and relevant principal officials on Hong Kong’s national security legislation. The Hong Kong and Macao Affairs Office of the State Council and the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region listened to the representatives of the National People’s Congress of Hong Kong District, members of the CPPCC National Committee and provincial CPPCC members, representatives of all walks of life in Hong Kong, and legal personnel from Hong Kong through various means and channels. With regard to the opinions and suggestions of relevant national legislation, carefully study the relevant opinions and suggestions put forward by the NPC deputies and members of the CPPCC National Committee during the two sessions of the country. On this basis, a draft law on the maintenance of national security in the Hong Kong Special Administrative Region was drafted. After the text of the draft law was drafted, the parties concerned specifically sought the opinions of the Government of the Hong Kong Special Administrative Region and relevant persons on the text, carefully studied the opinions and suggestions reflected by the Government of the Hong Kong Special Administrative Region, fully considered the actual situation of the Hong Kong Special Administrative Region, and in the spirit of being able to absorb as much as possible The text of the draft law has been revised and improved repeatedly.

　　The Standing Committee of the National People's Congress will soon finalize the legislation of the Hong Kong Special Administrative Region to maintain national security as an important and urgent task in the legislative work, and pay close attention to related work. On June 17, the Chairman’s meeting heard the report of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress on the drafting of the Law on the Safeguarding of National Security in the Hong Kong Special Administrative Region, and believed that the draft was in compliance with the Constitution and the principles of the Constitution, the "One Country, Two Systems" policy and the Hong Kong Basic Law. It is in line with the spirit of the "Decision" of the National People's Congress and is mature and feasible. It was decided to submit the "Law of the People's Republic of China on the Maintenance of National Security (Draft)" to the Standing Committee of the National People's Congress for deliberation.

　　The guiding ideology and working principles followed in drafting the draft law on the maintenance of national security in the Hong Kong Special Administrative Region

To study and draft the Law on the Safeguarding of National Security in the Hong Kong Special Administrative Region, we must adhere to the guidance of Xi Jinping’s Socialist Thought with Chinese Characteristics in the New Era and thoroughly implement the spirit of the Fourth Plenary Session of the Nineteenth Central Committee of the Party and the Third Session of the Ninth National People’s Congress. The Basic Law and the relevant provisions of the "Decision" of the National People's Congress fully, accurately and effectively exercise the relevant legislative powers granted to the Standing Committee of the National People's Congress by the National People's Congress, uphold and improve the "one country, two systems" system, and fully consider the practical needs of maintaining national security And the specific circumstances of the Hong Kong Special Administrative Region, make systematic and comprehensive provisions on the legal system and enforcement mechanism of the Hong Kong Special Administrative Region to safeguard national security, effectively safeguard national sovereignty, security and development interests, and effectively safeguard the constitutional order of the Special Administrative Region established by the Constitution and the Basic Law, Provide a strong constitutional basis and legal basis for promoting the construction of relevant systems and mechanisms for the maintenance of national security in the Hong Kong Special Administrative Region, and strengthening the judicial work of the Hong Kong Special Administrative Region in safeguarding national security.

In the process of studying and drafting relevant laws, pay attention to grasping, following and embodying the following working principles: First, strengthen system self-confidence, and strive to improve and perfect the relevant institutional mechanisms of the Hong Kong Special Administrative Region under the new situation with the implementation of the Constitution, the Hong Kong Basic Law and the "Decision" of the National People's Congress; It is to adhere to the problem orientation and focus on solving the legal loopholes, system deficiencies and "shortcomings" in the maintenance of the national security of the Hong Kong Special Administrative Region; third, highlight the responsible subjects and focus on the implementation of the constitutional responsibility and main tasks of the Hong Kong Special Administrative Region to maintain national security Responsibilities; Fourth, the overall arrangement of the system, focusing on making systematic and comprehensive provisions from the two levels of the country and the Hong Kong Special Administrative Region, the legal system and the enforcement mechanism; fifth, taking into account the differences between the two places, focusing on handling this law and relevant national laws, The connection, compatibility and complementarity of the local laws of the Hong Kong Special Administrative Region.

　　 Main contents of the draft law

The draft law on the maintenance of national security in the Hong Kong Special Administrative Region has six chapters, which are the general principles, the responsibilities and institutions for maintaining the national security of the Hong Kong Special Administrative Region, crimes and penalties, case jurisdiction, law application and procedures, and the Central People’s Government in the Hong Kong Special Administrative Region to maintain the national security agency , Supplementary Provisions; 66 in total. This is a comprehensive law with substantive law, procedural law and organizational law. The draft mainly includes the following aspects:

　　 (1) Clearly stipulate the fundamental responsibility of the Central People's Government for matters related to national security and the constitutional responsibility of the Hong Kong Special Administrative Region for maintaining national security. (1) The Central People's Government bears fundamental responsibility for the national security affairs of the Hong Kong Special Administrative Region. The Hong Kong Special Administrative Region has the constitutional responsibility for safeguarding national security and should perform its duty to safeguard national security. The administrative organs, legislatures and judicial organs of the Hong Kong Special Administrative Region shall, in accordance with relevant laws and regulations, effectively prevent, stop and punish acts and activities that endanger national security. (2) Safeguarding national sovereignty, unity and territorial integrity is the common obligation of the entire Chinese people, including Hong Kong compatriots. Any institutions, organizations and individuals in the Hong Kong Special Administrative Region shall abide by this Law and other laws of the Hong Kong Special Administrative Region concerning the maintenance of national security, and shall not engage in activities that endanger national security. Residents of the Hong Kong Special Administrative Region shall sign documents in accordance with the law to confirm or take an oath to support the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and to be loyal to the Hong Kong Special Administrative Region of the People’s Republic of China when they stand for election or assume public office. (3) The Hong Kong Special Administrative Region shall complete as early as possible the legislation on the maintenance of national security provided by the Basic Law of the Hong Kong Special Administrative Region and improve the relevant laws. (4) The law enforcement and judicial organs of the Hong Kong Special Administrative Region shall effectively implement the provisions of this Law and the existing laws of the Hong Kong Special Administrative Region concerning the prevention, suppression and punishment of acts that endanger national security, and effectively maintain national security. (5) The Hong Kong Special Administrative Region shall strengthen the work of safeguarding national security and preventing terrorist activities. The government of the Hong Kong Special Administrative Region shall take necessary measures to strengthen supervision and management of matters involving national security in schools and social organizations.

　　 (2) Clearly stipulates the important rule of law that the Hong Kong Special Administrative Region should follow in maintaining national security. (1) The maintenance of national security in the Hong Kong Special Administrative Region shall respect and protect human rights, and protect the residents of the Hong Kong Special Administrative Region in accordance with the law and apply to Hong Kong in accordance with the Basic Law of the Hong Kong Special Administrative Region and the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights The rights and freedoms including freedom of speech, news, and publication, freedom of association, assembly, procession, demonstration, etc. (2) To prevent, stop and punish crimes that endanger national security, the principle of the rule of law should be adhered to. If it is stipulated by the law as a criminal act, it shall be convicted and punished in accordance with the law; if it is not stipulated by the law as a criminal act, it shall not be convicted and punished. Anyone is presumed innocent before being convicted by the judiciary. The right of defense and other litigation rights enjoyed by criminal suspects, defendants and other litigation participants shall be guaranteed. Anyone who has been finally found guilty or declared innocent in judicial proceedings shall not be retried or punished for the same act.

　　 (3) Clearly stipulate that the Hong Kong Special Administrative Region shall establish and improve relevant institutions and responsibilities for maintaining national security. (1) The Hong Kong Special Administrative Region establishes the National Security Maintenance Committee, which is responsible for the national security maintenance of the Hong Kong Special Administrative Region, assumes the main responsibility for maintaining national security, and accepts the supervision and accountability of the Central People's Government. (2) The Hong Kong Special Administrative Region’s National Security Council is chaired by the Chief Executive. Its members include the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Director of the Police, and the Police Department for the maintenance of national security. The person in charge, the director of the immigration department, the customs chief and the chief of the chief executive's office. The Hong Kong Special Administrative Region’s National Security Council has a secretariat under the leadership of the Secretary-General. The Secretary-General is nominated by the Chief Executive and reported to the Central People's Government for appointment. (3) The responsibilities of the Hong Kong Special Administrative Region’s National Security Maintenance Committee are to analyze and judge the situation of the Hong Kong Special Administrative Region’s national security maintenance, plan relevant work, formulate the Hong Kong Special Administrative Region’s national security maintenance policy, and promote the Hong Kong Special Administrative Region’s national security maintenance system and enforcement mechanism Construction; Coordinate the key work and major actions of the Hong Kong Special Administrative Region to maintain national security. (4) The National Security Affairs Committee of the Hong Kong Special Administrative Region’s National Security Maintenance Committee shall be appointed by the Central People’s Government to provide advice on matters related to the performance of duties of the National Security Committee of the Hong Kong Special Administrative Region. (5) The Police Department of the Government of the Hong Kong Special Administrative Region establishes a department to maintain national security and is equipped with law enforcement forces. (6) The Department of Justice of the Government of the Hong Kong Special Administrative Region has established a special national security crime prosecution department to be responsible for the prosecution of crimes against national security and other related legal affairs.

　　 (4) Clearly stipulate four types of crimes and penalties that endanger national security. Chapter III "Crimes and Punishments" of the draft is divided into 6 sections. The specific composition and corresponding criminal responsibilities of four types of crimes including the crime of secession, subversion of state power, terrorism, collusion with foreign or foreign forces endangering national security, and others Penalty regulations and the scope of effectiveness are clearly defined. Distinguish between different situations and stipulate the penalties for four types of criminal acts.

　　 (5) Clearly stipulate case jurisdiction, law application and procedures. (1) Except in certain circumstances, the Hong Kong Special Administrative Region shall exercise jurisdiction over criminal cases provided for by this Law. (2) This law and the local laws of the Hong Kong Special Administrative Region shall apply to the procedural matters such as the investigation, prosecution, trial, and execution of penalties for criminal cases that endanger national security. The trial of crimes against national security under the jurisdiction of the Hong Kong Special Administrative Region shall be conducted in accordance with public prosecution procedures. (3) When the Police Department of the Hong Kong Special Administrative Region Government maintains the national security department to handle crimes against the national security, it may take various measures approved by the current laws of the Hong Kong Special Administrative Region to grant permission to the police and other law enforcement agencies in investigating serious crimes, as well as the provisions of this Law Relevant authority and measures. (4) The Chief Executive of the Hong Kong Special Administrative Region shall appoint a number of judges from the current or qualified former magistrates, district court judges, judges of the Court of First Instance of the High Court, judges of the Court of Appeal and judges of the Court of Final Appeal. The judges appointed by the committee are responsible for handling crimes that endanger national security.

(6) Clearly stipulate that the Central People's Government in the Hong Kong Special Administrative Region maintains national security agencies. (1) The Central People's Government establishes the National Security Agency in the Hong Kong Special Administrative Region. The Office of the National People’s Government of the Hong Kong Special Administrative Region for the Safeguarding of National Security performs its duties of safeguarding national security in accordance with law and exercises related powers. (2) The duties of the National Security Agency in Hong Kong are: to analyze and judge the situation of safeguarding national security in the Hong Kong Special Administrative Region, and to provide opinions and suggestions on major strategies and important policies for safeguarding national security; to supervise, guide, coordinate, and support the implementation of the safeguarding of national security by the Hong Kong Special Administrative Region Duties; collect and analyze national security intelligence information; handle crimes against national security according to law. (3) The National Security Agency in Hong Kong should perform its duties strictly in accordance with the law and accept supervision in accordance with the law, and must not infringe on the legitimate rights and interests of any individual or organization. In addition to national laws, the personnel of the National Security Agency in Hong Kong should also abide by the laws of the Hong Kong Special Administrative Region. (4) The National Security Agency in Hong Kong shall establish a coordination mechanism with the Hong Kong Special Administrative Region Commission for the Maintenance of National Security to supervise and guide the work of the Hong Kong Special Administrative Region in safeguarding national security. The working department of the National Security Agency in Hong Kong has established a collaboration mechanism with the law enforcement and judicial authorities of the Hong Kong Special Administrative Region to maintain national security, and strengthened information sharing and action coordination.

The draft also clearly stipulates the case jurisdiction and procedures of the National Security Agency in Hong Kong and relevant national authorities in specific situations. It should be noted that the National Security Agency in Hong Kong and the relevant national authorities exercise jurisdiction over a very small number of crimes against national security under certain circumstances, which is an important manifestation of the central government’s comprehensive governance power and is conducive to supporting and strengthening the maintenance of the Hong Kong Special Administrative Region Security law enforcement and judicial work are conducive to avoiding the possibility of causing or leading to a state of emergency provided for in Article 18, paragraph 4, of the Basic Law of the Hong Kong Special Administrative Region.

The draft provides in the Supplementary Provisions: If the local laws of the Hong Kong Special Administrative Region are inconsistent with this Law, the provisions of this Law shall apply; the power of interpretation of this Law shall belong to the Standing Committee of the National People’s Congress.

法制工作委员会负责人向十三届全国人大常委会第十九次会议作关于《中华人民共和国香港特别行政区维护国家安全法（草案）》的说明


2020年06月20日18:18 来源：新华网


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　　新华社北京6月20日电 受委员长会议委托，全国人大常委会法制工作委员会负责人6月18日向十三届全国人大常委会第十九次会议作关于《中华人民共和国香港特别行政区维护国家安全法（草案）》的说明，摘要如下。

　　制定香港特别行政区维护国家安全法是贯彻党的十九届四中全会精神、落实《全国人民代表大会关于建立健全香港特别行政区维护国家安全的法律制度和执行机制的决定》的重要任务

　　2020年5月28日，十三届全国人大三次会议通过了《全国人民代表大会关于建立健全香港特别行政区维护国家安全的法律制度和执行机制的决定》（以下简称《决定》），自公布之日起施行。这是最高国家权力机关贯彻党的十九届四中全会精神，根据宪法和香港基本法的有关规定，适应新的形势和需要，坚持和完善“一国两制”制度体系，从国家层面建立健全香港特别行政区维护国家安全的法律制度和执行机制的重要制度安排，为下一步制定相关法律提供了宪制依据。以《决定》为依据制定相关法律，是完成这一重要制度安排的关键环节和重要组成部分。《决定》第六条规定：“授权全国人民代表大会常务委员会就建立健全香港特别行政区维护国家安全的法律制度和执行机制制定相关法律，切实防范、制止和惩治任何分裂国家、颠覆国家政权、组织实施恐怖活动等严重危害国家安全的行为和活动以及外国和境外势力干预香港特别行政区事务的活动。全国人民代表大会常务委员会决定将上述相关法律列入《中华人民共和国香港特别行政区基本法》附件三，由香港特别行政区在当地公布实施。”在今年全国两会期间，许多全国人大代表、全国政协委员和有关方面都提出，全国人大常委会应根据全国人大的有关决定尽快制定香港特别行政区维护国家安全的相关法律，推进香港特别行政区维护国家安全制度机制建设，确保相关法律在香港特别行政区有效实施。

　　十三届全国人大三次会议《决定》草案的说明中明确了从国家层面建立健全香港特别行政区维护国家安全的法律制度和执行机制必须遵循和把握好的五条基本原则，即：坚决维护国家安全、坚持和完善“一国两制”制度体系、坚持依法治港、坚决反对外来干涉、切实保障香港居民合法权益。关于香港特别行政区维护国家安全制度安排的核心要素，已经在全国人大《决定》中作出了基本规定。即将制定的香港特别行政区维护国家安全的相关法律，是十三届全国人大三次会议精神和《决定》内容的全面展开、充分贯彻和具体落实，是香港特别行政区维护国家安全制度安排的法律化、规范化、明晰化。

　　近一段时间以来，中央有关部门认真开展相关法律草案起草工作，并多次听取香港特别行政区行政长官林郑月娥和有关主要官员对香港维护国家安全立法问题的意见建议。国务院港澳事务办公室、中央人民政府驻香港特别行政区联络办公室通过多种方式和渠道听取港区全国人大代表、港区全国政协委员和省级政协委员、香港社会各界代表人士、香港法律界人士等方面对国家相关立法的意见和建议，认真研究全国两会期间全国人大代表、全国政协委员提出的相关意见和建议。在此基础上，起草了香港特别行政区维护国家安全法草案。法律草案文本形成后，有关方面专门就案文征求了香港特别行政区政府和有关人士的意见，认真研究香港特别行政区政府反映的意见建议，充分考虑香港特别行政区实际情况，本着能吸收尽量吸收的精神，对法律草案文本作了反复修改完善。

　　全国人大常委会将尽快完成香港特别行政区维护国家安全的立法确定为立法工作中一项重要而紧迫的任务，抓紧相关工作。6月17日，委员长会议听取了全国人大常委会法工委关于香港特别行政区维护国家安全法起草工作等情况的汇报，认为草案符合宪法规定和宪法原则，符合“一国两制”方针和香港基本法，符合全国人大《决定》精神，是成熟可行的，决定将《中华人民共和国香港特别行政区维护国家安全法（草案）》提请全国人大常委会审议。

　　起草香港特别行政区维护国家安全法草案遵循的指导思想和工作原则

　　研究起草香港特别行政区维护国家安全法，必须坚持以习近平新时代中国特色社会主义思想为指导，深入贯彻落实党的十九届四中全会精神和十三届全国人大三次会议精神，根据宪法、香港基本法和全国人大《决定》的有关规定，全面、准确、有效行使全国人民代表大会授予全国人民代表大会常务委员会的相关立法职权，坚持和完善“一国两制”制度体系，充分考虑维护国家安全的现实需要和香港特别行政区的具体情况，对香港特别行政区维护国家安全的法律制度和执行机制作出系统全面的规定，切实维护国家主权、安全、发展利益，切实维护宪法和基本法确立的特别行政区宪制秩序，为推进香港特别行政区维护国家安全相关制度机制建设、加强香港特别行政区维护国家安全执法司法工作提供有力的宪制依据和法律依据。

　　研究起草有关法律过程中，注意把握、遵循和体现以下工作原则：一是坚定制度自信，着力健全完善新形势下香港特别行政区同宪法、香港基本法和全国人大《决定》实施相关的制度机制；二是坚持问题导向，着力解决香港特别行政区在维护国家安全方面存在的法律漏洞、制度缺失和工作“短板”问题；三是突出责任主体，着力落实香港特别行政区维护国家安全的宪制责任和主要责任；四是统筹制度安排，着力从国家和香港特别行政区两个层面、法律制度和执行机制两个方面作出系统全面的规定；五是兼顾两地差异，着力处理好本法与国家有关法律、香港特别行政区本地法律的衔接、兼容和互补关系。

　　法律草案的主要内容

　　香港特别行政区维护国家安全法草案有6章，分别为总则，香港特别行政区维护国家安全的职责和机构，罪行和处罚，案件管辖、法律适用和程序，中央人民政府驻香港特别行政区维护国家安全机构，附则；共66条。这是一部兼具实体法、程序法和组织法内容的综合性法律，草案主要包括以下几个方面的内容：

　　（一）明确规定中央人民政府对有关国家安全事务的根本责任和香港特别行政区维护国家安全的宪制责任。（1）中央人民政府对香港特别行政区有关的国家安全事务负有根本责任。香港特别行政区负有维护国家安全的宪制责任，应当履行维护国家安全的职责。香港特别行政区行政机关、立法机关、司法机关应当依据有关法律规定有效防范、制止和惩治危害国家安全的行为和活动。（2）维护国家主权、统一和领土完整是包括香港同胞在内的全中国人民的共同义务。在香港特别行政区的任何机构、组织和个人都应当遵守本法和香港特别行政区有关维护国家安全的其他法律，不得从事危害国家安全的活动。香港特别行政区居民在参选或者就任公职时应当依法签署文件确认或者宣誓拥护中华人民共和国香港特别行政区基本法，效忠中华人民共和国香港特别行政区。（3）香港特别行政区应当尽早完成香港特别行政区基本法规定的维护国家安全立法，完善相关法律。（4）香港特别行政区执法、司法机关应当切实执行本法和香港特别行政区现行法律有关防范、制止和惩治危害国家安全行为的规定，有效维护国家安全。（5）香港特别行政区应当加强维护国家安全和防范恐怖活动的工作。对学校、社会团体等涉及国家安全的事宜，香港特别行政区政府应当采取必要措施，加强监督和管理。

　　（二）明确规定香港特别行政区维护国家安全应当遵循的重要法治原则。（1）香港特别行政区维护国家安全应当尊重和保障人权，依法保护香港特别行政区居民根据香港特别行政区基本法和《公民权利和政治权利国际公约》《经济、社会与文化权利的国际公约》适用于香港的有关规定享有的包括言论、新闻、出版的自由，结社、集会、游行、示威的自由在内的权利和自由。（2）防范、制止和惩治危害国家安全犯罪，应当坚持法治原则。法律规定为犯罪行为的，依照法律定罪处刑；法律没有规定为犯罪行为的，不得定罪处刑。任何人未经司法机关判罪之前均假定无罪。保障犯罪嫌疑人、被告人和其他诉讼参与人依法享有的辩护权和其他诉讼权利。任何人已经司法程序被最终确定有罪或者宣告无罪的，不得就同一行为再予审判或者惩罚。

　　（三）明确规定香港特别行政区建立健全维护国家安全的相关机构及其职责。（1）香港特别行政区设立维护国家安全委员会，负责香港特别行政区维护国家安全事务，承担维护国家安全的主要责任，并接受中央人民政府的监督和问责。（2）香港特别行政区维护国家安全委员会由行政长官担任主席，成员包括政务司司长、财政司司长、律政司司长、保安局局长、警务处处长、警务处维护国家安全部门负责人、入境事务处处长、海关关长和行政长官办公室主任。香港特别行政区维护国家安全委员会下设秘书处，由秘书长领导。秘书长由行政长官提名，报中央人民政府任命。（3）香港特别行政区维护国家安全委员会的职责为：分析研判香港特别行政区维护国家安全形势，规划有关工作，制定香港特别行政区维护国家安全政策；推进香港特别行政区维护国家安全的法律制度和执行机制建设；协调香港特别行政区维护国家安全的重点工作和重大行动。（4）香港特别行政区维护国家安全委员会设立国家安全事务顾问，由中央人民政府指派，就香港特别行政区维护国家安全委员会履行职责相关事务提供咨询意见。（5）香港特别行政区政府警务处设立维护国家安全的部门，配备执法力量。（6）香港特别行政区政府律政司设立专门的国家安全犯罪案件检控部门，负责危害国家安全犯罪案件的检控工作和其他相关法律事务。

　　（四）明确规定四类危害国家安全的罪行和处罚。草案第三章“罪行和处罚”分6节，对分裂国家罪、颠覆国家政权罪、恐怖活动罪、勾结外国或者境外势力危害国家安全罪四类犯罪行为的具体构成和相应的刑事责任，其他处罚规定以及效力范围，作出明确规定。区分不同情形，分别规定四类犯罪行为的刑罚。

　　（五）明确规定案件管辖、法律适用和程序。（1）除特定情形外，香港特别行政区对本法规定的犯罪案件行使管辖权。（2）香港特别行政区管辖危害国家安全犯罪案件的立案侦查、检控、审判和刑罚的执行等诉讼程序事宜，适用本法和香港特别行政区本地法律。香港特别行政区管辖的危害国家安全犯罪案件的审判循公诉程序进行。（3）香港特别行政区政府警务处维护国家安全部门办理危害国家安全犯罪案件时，可以采取香港特别行政区现行法律准予警方等执法部门在调查严重犯罪案件时采取的各种措施，以及本法规定的有关职权和措施。（4）香港特别行政区行政长官应当从现任或者符合资格的前任裁判官、区域法院法官、高等法院原讼法庭法官、上诉法庭法官以及终审法院法官中指定若干名法官，也可以从暂委或者特委法官中指定法官，负责处理危害国家安全犯罪案件。

　　（六）明确规定中央人民政府驻香港特别行政区维护国家安全机构。（1）中央人民政府在香港特别行政区设立维护国家安全公署。中央人民政府驻香港特别行政区维护国家安全公署依法履行维护国家安全职责，行使相关权力。（2）驻港国家安全公署的职责为：分析研判香港特别行政区维护国家安全形势，就维护国家安全重大战略和重要政策提出意见和建议；监督、指导、协调、支持香港特别行政区履行维护国家安全的职责；收集分析国家安全情报信息；依法办理危害国家安全犯罪案件。（3）驻港国家安全公署应当严格依法履行职责，依法接受监督，不得侵害任何个人和组织的合法权益。驻港国家安全公署人员除须遵守全国性法律外，还应当遵守香港特别行政区法律。（4）驻港国家安全公署应当与香港特别行政区维护国家安全委员会建立协调机制，监督、指导香港特别行政区维护国家安全工作。驻港国家安全公署的工作部门与香港特别行政区维护国家安全的执法、司法机关建立协作机制，加强信息共享和行动配合。

　　草案还对驻港国家安全公署和国家有关机关在特定情形下的案件管辖和程序作出了明确规定。需要说明的是，驻港国家安全公署和国家有关机关在特定情形下对极少数危害国家安全犯罪案件行使管辖权，是中央全面管治权的重要体现，有利于支持和加强香港特别行政区维护国家安全执法工作和司法工作，有利于避免可能出现或者导致出现香港特别行政区基本法第十八条第四款规定的紧急状态情形。

　　草案在附则中规定：香港特别行政区本地法律与本法不一致的，适用本法规定；本法的解释权属于全国人民代表大会常务委员会。





(责编：曹昆)