THE ADVOCATE 185
VOL. 80 PART 2 MARCH 2022
HONG KONG’S
NATIONAL SECURITY LAW AND
JUDICIAL INDEPENDENCE
By Michael Blanchflower, S.C.
On June 30, 2020, to fulfill its responsibility for national security
affairs relating to the Hong Kong Special Administrative
Region (“HKSAR”), the Central People’s Government (“CPG”)
of the People’s Republic of China (“PRC”) applied “The Law of
the People’s Republic of China on Safeguarding National Security in the
Hong Kong Special Administrative Region”1 (“NSL”) to the HKSAR. The NSL
has brought significant changes to the political, legal and social systems of
the HKSAR. In particular, it affects the independence of the judiciary, as
well as the independence of police and prosecutors when carrying out their
duties under the NSL.
BACKGROUND
In the early 1980s, in preparation for the return of sovereignty over Hong
Kong from Britain to China, the governments of both countries agreed in
the Joint Declaration upon systems, rights and lifestyles that would be guaranteed
to Hong Kong after the return of sovereignty on July 1, 1997, and
would remain unchanged for 50 years. British and Chinese officials negotiated
the Basic Law,2 which contains what was agreed to in the Joint Declaration.
The Basic Law was adopted in April 1990 at the Seventh National
People’s Congress of the PRC (“NPC”) and came into effect on July 1, 1997.
It is the HKSAR’s constitution.
Since July 1, 1997, Article 23 of the Basic Law has required the HKSAR
government to enact a law for the national security of the HKSAR. In 2003,
the government proposed draft legislation for a national security law, which
was circulated for public consultation, but in the face of strong opposition
it withdrew the proposal. The CPG considered the absence of a national
security law a major omission. After the protests and violence in 2019 and
early 2020 triggered by the government’s intention to enact an extradition
law that would have allowed people to be surrendered to China and other
countries with which the HKSAR did not have extradition agreements, the