The National Security Law for Hong Kong (NSL) has just entered its third year of implementation. At the recently-held 53rd session of the United Nations Human Rights Council, Chinese delegates asserted that the implementation of the NSL has reinforced Hong Kong’s rule of law, with residents’ rights and freedoms being better protected.
Their statement was a robust riposte to the unfounded accusations that the NSL damages the city’s core values and civil rights. Among those accusations was the one that questioned the legitimacy of the NSL’s extraterritorial application.
Looking back over the past three years, the NSL has successfully deterred potential violence including terrorist attacks. It has helped crack down on individuals engaging in subversive acts such as the promotion of separatism through different channels. The NSL has served as a stabilizer for Hong Kong by keeping the subversives at bay.
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The extraterritorial jurisdiction feature of the NSL, which is like the sword of Damocles poised over the heads of overseas offenders, makes the law all the more powerful. External forces were strong supporters of the rioters in 2019-20. Hence, it makes sense that the NSL has been endowed with extraterritoriality.
Article 37 of the NSL stipulates: The 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”. And Article 38 stipulates that the law applies to offences committed against the HKSAR from outside the region by a person who is not a permanent resident of Hong Kong.
Most countries extend jurisdiction beyond their territories over certain crimes under the principle of “personal jurisdiction”
The NSL also explicitly prescribes safeguards for the civil rights enshrined in the Basic Law, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. But those rights and freedoms are not absolute. The extraterritoriality of the NSL conforms to international law. After all, national security takes precedence over the rights of individuals.
When a country’s criminal law punishes crimes that occur within its territory, the “territorial jurisdiction” principle applies. Most countries extend jurisdiction beyond their territories over certain crimes under the principle of “personal jurisdiction”. In exceptional cases, in which a country’s interests and security are greatly threatened, overseas jurisdiction prevails according to the protective principle of international law.
The extraterritoriality nature of the NSL doesn’t merely act as a counter to any national threat, but also closes the loopholes in Hong Kong’s criminal jurisdiction (where the city doesn’t have complete extradition terms for local criminals committing offenses overseas). Since the NSL was enacted, some instigators who took part in illegal demonstrations and “Hong Kong independence” promotion have fled the city. Western countries have offered so-called “lifeboat schemes” to help them shirk legal responsibility. But can they escape from justice forever?
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In March, a Hong Kong student studying in Japan was arrested when she returned to Hong Kong for having allegedly having committed an act or acts with seditious intent during her stay in Japan. Earlier this year, West Kowloon Court sentenced a teenager to detention for publishing 29 similar posts online, including eight statements released while he was in New Zealand.
Some critics claim that the extraterritorial jurisdiction feature of the NSL doesn’t stand with international law, saying that it encroaches on the sovereignty of other countries. But similar statutes can be found around the world. For instance, the United States Code, the Logan Act of the United States, the Terrorism (Suppression of Bombings) Act of Singapore and the German Criminal Code all possess such a feature.
Meanwhile, with national security threats still lingering, it is time for Hong Kong to complete local legislation according to Article 23 of the Basic Law to enhance the national security defense system in the special administrative region by complementing the NSL. The future Article 23 legislation should also include the all-important extraterritoriality feature for it to be effective in deterring acts of treason, secession, sedition, subversion and theft of State secrets.
The author is vice-president of HKCPPCCYA, and a HKU doctorate student in public law.
The views do not necessarily reflect those of China Daily.