186 THE ADVOCATE
VOL. 80 PART 2 MARCH 2022
CPG enacted its own national security law and had it applied in the HKSAR
as permitted by the Basic Law.3
The NSL has a special constitutional status and is directed to safeguarding
national security and preventing and suppressing acts endangering
national security in the HKSAR.4 Since it is a PRC law, Hong Kong courts do
not have jurisdiction to review the legislative acts of the NPC and its drafting
committee prior to the promulgation of the NSL on the basis of any
alleged incompatibility with the Basic Law or the Bill of Rights Ordinance5
(“Bill of Rights”), which incorporates provisions of the International
Covenant on Civil and Political Rights as applied to Hong Kong.6
SAFEGUARDING NATIONAL SECURITY IN THE HKSAR
The NSL contains four offences: secession, subversion, terrorist activities
and collusion with a foreign country to endanger national security.7 Subversion
includes seriously interfering with the performance of the HKSAR’s
Legislative Council. Participating in a protest outside the Legislative Council
building in a way that prevents the Council from conducting its business
could constitute subversion.
The judiciary’s duties under the NSL are clear. Article 3 of the NSL directs
the executive authorities, legislature and judiciary to “effectively prevent,
suppress and impose punishment for any act or activity endangering
national security” in accordance with the NSL and other relevant laws. This
duty is sharpened in art. 8, under which law enforcement and judicial
authorities of the HKSAR are required to “fully enforce” the NSL and the
HKSAR’s laws for acts and activities endangering national security.
The NSL required the establishment of new bodies in the HKSAR to
ensure that its responsibilities were fulfilled, and the CPG is involved in
some way with these bodies. The HKSAR established the Committee for
Safeguarding National Security (the “Committee”) under the supervision of
and accountable to the CPG.8 The Chief Executive (“CE”) of the HKSAR is
the chairperson of the Committee and is accountable to the CPG for
national security affairs in the HKSAR.9 Members of the Committee include
the Secretary for Justice, Secretary for Security, Commissioner of Police
and the head of the department in the Hong Kong Police Force responsible
for safeguarding national security. A Secretary-General appointed by the
CPG, upon the CE’s nomination, is in charge of the Committee’s
Secretariat.10 An adviser appointed by the CPG advises the Committee on
matters relating to its duties and functions, and sits in on Committee meetings.
11 No institution, organization or individual can interfere with the Committee’s
work; any information relating to the Committee’s work is not
subject to disclosure; and its decisions are not subject to judicial review.12