Hoey Simon Lee and Cheung Chun Pong say the practice is in line not only with local laws but also with common international practices.
A Hong Kong student studying in Japan was arrested and prosecuted for the crime of inciting secession after publishing posts and photos online to promote “Hong Kong independence” on social media during her studies. She was charged with violating the National Security Law for Hong Kong (NSL) upon returning to Hong Kong. This case attracted attention as it was the first case in which the extraterritorial jurisdiction stipulated in the NSL was exercised. However, some biased overseas media outlets falsely alleged that the extraterritorial jurisdiction of the NSL is overly extended and violated international law and human rights.
To be fair, the NSL has restored peace and stability in Hong Kong. In a safe environment, the rights of citizens are ensured. Thus, the NSL has been accepted by the society.
In Part 6 of the NSL on the scope of application, Article 37 clearly states: “This Law shall apply to a person who is a permanent resident of the Hong Kong Special Administrative Region or an incorporated or unincorporated body such as a company or an organization which is set up in the Region if the person or the body commits an offence under this Law outside the Region.” By virtue of Article 38, the NSL also applies to offenses committed against the HKSAR from outside Hong Kong by a person who is not a permanent Hong Kong resident. On June 30, 2020, the addition of the NSL to Annex III of the Basic Law was passed at the 20th session of the Standing Committee of the 13th National People’s Congress, and the implementation of the law was announced by then-chief executive Carrie Lam Cheng Yuet-ngor on the same day. Different organizations and media outlets immediately made detailed introductions and discussions on the extraterritorial jurisdiction stipulated in the NSL, including its applicability to foreign offenders. Extraterritorial jurisdiction is nothing new today, and those overseas media outlets’ claim that some provisions of the NSL are ambiguous is unfounded.
The NSL is intended to safeguard national security, prevent, suppress and impose punishment on the offences of secession, subversion, organization and perpetration of terrorist activities, and collusion with a foreign country or with external elements to endanger national security in relation to the HKSAR; maintain prosperity and stability in the HKSAR, and protect the lawful rights and interests of HKSAR residents. If the law lacks extraterritorial jurisdiction, overseas activities to separate the country or subvert State power would be unrestrained. This is obviously contrary to the legislative intent of the law to protect national security and promote Hong Kong’s prosperity and stability. Therefore, extraterritorial jurisdiction is indeed an indispensable part of the NSL.
The allegations that the NSL violates the International Covenant on Civil and Political Rights (ICCPR) and the Hong Kong Bill of Rights Ordinance (Bill of Rights) are also unsubstantiated. In fact, the rights and freedoms enumerated in the ICCPR are not absolute, and are subject to restrictions as prescribed by law if it is necessary in the interests of national security, public safety, public order, or the rights and freedoms of others, etc. Also as stated in the Bill of Rights, the exercise of the right to freedom of expression carries with it special duties and responsibilities. Therefore, some necessary restrictions are provided by the law, including with respect to the rights or reputations of others; for the protection of national security or of public order; or for reasons of public health or morals. It is obvious that the NSL does not violate these laws; rather, it safeguards residents and property, as well as their rights and freedoms to the greatest extent within the framework of the law.
In fact, extraterritorial jurisdiction is not unique to the NSL. Long before its enactment, some Hong Kong ordinances had already had this feature. For example: Section 153P of the Crimes Ordinance empowers Hong Kong courts with extraterritorial jurisdiction to try specified sexual offenses committed overseas by Hong Kong permanent residents against children under the age of 16. In respect of the Criminal Jurisdiction Ordinance, the offenses covered include theft, fraud and blackmail, as well as conspiracy and attempts to commit such offenses. Even though part of these criminal acts might have taken place outside Hong Kong, if some related events have occurred within Hong Kong, the local courts will also have jurisdiction; Section 4 of the Prevention of Bribery Ordinance also states that any person who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, offers any advantage to a public servant as an inducement to or reward for or otherwise on account of that public servant’s providing an advantage to a public official, regardless of whether he is in Hong Kong or overseas at the time, can also be prosecuted.
At the international level, extraterritorial application is a common feature of national security laws in many countries. For examples: The Logan Act of the United States prohibits certain unauthorized correspondence of its citizens, wherever he or she may be, with foreign governments; the Foreign Intelligence Surveillance Act 1978 of the US allows surveillance and collecting overseas intelligence on foreign people abroad; Section 5 (Offences committed abroad with specific domestic connection) of the German Criminal Code, which covers extraterritorial conducts in respect of the offense of treason; and the Terrorism (Suppression of Bombing) Act and the Protection from Online Falsehoods and Manipulation Act of Singapore. It shows that in both common-law and statutory-law jurisdictions, it is indispensable to introduce extraterritorial jurisdiction for national security, and its application is in line with the international practice.
In short, the extraterritorial jurisdiction of the NSL is a necessary law enforcement tool. It is not only in line with local laws but also in line with common international practices. As the US-China rivalry intensifies, it is suspected that those overseas media reports questioning the NSL’s extraterritorial jurisdiction are pure propaganda intended to demonize the law, and gain political leverage for the US. To be fair, the NSL has restored peace and stability in Hong Kong. In a safe environment, the rights of citizens are ensured. Thus, the NSL has been accepted by the society. These positive results brought by the implementation of the NSL are rarely reported by overseas media, which is further evidence that their criticisms of the NSL were politically motivated.
Dr Hoey Simon Lee is a Legislative Council Member and chairperson of the Basic Law Foundation. And Cheung Chun Pong is a research fellow of the Basic Law Foundation.
The views do not necessarily reflect those of China Daily.