Opinion | DOJ promotes awareness of national security

By Grenville Cross

The National Security Law for Hong Kong (NSL) could hardly be more precise.

It requires the Hong Kong Special Administrative Region to "promote national security education in schools and universities and through social organizations, the media, the internet and other means to raise the awareness of Hong Kong residents of national security and of the obligation to abide by the law" (Art.10).

In any civilized society, people need to understand the laws that govern them. They have to appreciate what types of conduct are acceptable and which are not. Therefore, the Department of Justice (DOJ) has a central role in promoting public understanding of national security and related issues, and its latest initiative is both timely and welcome.

On Dec 28, the DOJ published its annotated versions of both the NSL and the sedition law (Sections 9 and 10 of the Crimes Ordinance). When lawyers talk about annotations, they generally have in mind notes that contain helpful comments or explanations, and which shed light on particular textual aspects. These can help the reader to identify the main points, appreciate important terms, and generally enhance an understanding of the whole.

Through the DOJ's annotations, the reader can access case summaries or digests. These illustrate how the courts have handled the varied cases upon which they have adjudicated. This should enlighten everybody who wishes to appreciate the Judiciary's role in this evolving area of the law.

The DOJ has achieved this by uploading a dedicated NSL webpage onto its website, to which the public now has ready access. Its purpose is avowedly educative, and it is also user-friendly, which is a bonus.

Although the webpage is currently only in English, a Chinese version has been promised for early this year, and the sooner, the better.

Although the webpage is compartmentalized, it is also comprehensive. It includes an introduction to the NSL, its full text and relevant case law, its offenses and penalties, its Implementation Rules (issued under NSL Art.43), and the law of sedition (together with case law concerning sedition generated since 2020).

Indeed, the webpage covers a multitude of areas. It describes such things as the NSL's legislative history, its general principles, the HKSAR's duties concerning its implementation, the jurisdiction of the courts, the applicable law and practices, and the special procedures for judges handling national security matters. It promises, therefore, to be of immense value, not least to legal practitioners.

In his foreword, the secretary for justice, Paul Lam Ting-kwok SC, explained, "The webpage will serve as a convenient and practical tool for promoting national security education and conducting legal research on our national security laws."

He also said he hoped it will enhance understanding of the NSL and the sedition law "by all sectors, including those in the legal, education and public sectors". This is a laudable aspiration, because a stable society depends on people in those sectors fully appreciating the actual situation whenever national security questions arise.

Apart from this, the community as a whole needs to know which types of conduct are impermissible, and it is here that the webpage will be of particular assistance. Not everybody knows how to interpret the courts' judgments or understands their ramifications, and some people are unsure how to locate them. It is gratifying that the DOJ appreciates this, and has provided the public with a clear reference tool concerning a crucial area of national life.

In his foreword, the renowned constitutional scholar Professor Albert Chen Hung-yee, the project's honorary consultant editor, highlighted the importance of the public fully understanding national security issues. He stressed, "The first principle of the rule of law necessarily implies that the content and requirements of legal rules governing citizens' conduct should be clearly and unambiguously communicated to citizens, so that they may order their conduct accordingly so as to avoid any 'breach of law' and the legal liability that may flow from it."

In other words, knowledge is king when it comes to criminal justice. Now that the DOJ has provided a comprehensive database for national security, it will not be easy for anyone in the future to feign ignorance of the legal situation (as some suspects have done) when national security is endangered.

Indeed, a sound level of local knowledge of national security matters is imperative at all levels. Not only organizations and institutions must appreciate the implications of the NSL, but also individuals, who need to know how the criminal law operates in this area (as in others).

After all, the NSL recognizes that save in exceptional cases, which have not yet arisen (as where foreign forces have prevented a fair trial from occurring), NSL suspects will be tried by the HKSAR's courts. This not only validates the "one country, two systems" governing policy, under which local courts assume jurisdiction over local cases, but also underscores the central government's faith in the HKSAR, even when national security is at stake.

Moreover, since its enactment on June 30, 2020, the NSL has been applied with great restraint by the authorities. As of Nov 10, only 101 people had been convicted and sentenced under it (or were awaiting sentence). Nonetheless, the courts have generated a considerable body of jurisprudence concerning the NSL, covering such things as the granting of bail, the punishment of offenders, and the ambit of secessionist activity.

These and other developments deserve to be correctly understood, and this is where the webpage will undoubtedly come into its own. Everybody stands to benefit now that the DOJ has provided ready access to a webpage that is clear and insightful, and comprehensible to the man in the street.

By any yardstick, the webpage is a formidable research tool. It will promote transparency concerning matters about which too many people know little, and will facilitate the work of educators and others exercising social responsibility. Anything that can be done to demystify the NSL is welcome, not least because people with sinister motives have sometimes demonized it.

Once people study the webpage, they can see how the NSL is being successfully absorbed into our legal system, without violating any of its fundamental tenets. The courts have invariably applied traditional common law techniques when considering national security issues, which is apparent from the annotations.

The production of the webpage must have been a major project, and the DOJ is to be complimented for having gone the extra mile. Public awareness is always critical, and this means that accurate perspectives have to be conveyed. Even if the webpage was not a labor of love, it was a highly worthwhile exercise. It will benefit not only the local community, but also the country as a whole.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The article was first published in China Daily.