Judging Hong Kong's National Security Law

Abstract

First, it is defensible—as Albert Chen has argued—that the HKSAR’s constitutional duty to enact national security laws “on its own” is subject to an implied requirement that this duty be fulfilled within a reasonable time, or the Central Government may intervene and legislate on the HKSAR’s behalf. But to be consistent, Beijing should also act unilaterally on another mothballed provision—Article 68 of the Basic Law (BL)—which guarantees the election of all members of the Legislative Council by universal suffrage. Second, the insertion of the NSL into Annex III BL is problematic as the BL only authorizes the inclusion of 全國性法律—People’s Republic of China (PRC) laws that have nation-wide applications or effects. Notably, the NSL only applies to Hong Kong and not to the Mainland. Nevertheless, it will be a fool’s errand for the Hong Kong courts to reject the NSL wholesale, or invalidate it in part, as Beijing can legally overrule the courts and oust those judges from future national security disputes. Instead, Hong Kong judges should engage in a remedial interpretation of the NSL, such that the law’s operative scope is read down and additional safeguards are judicially inserted into the legislation.