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HK legislation balances rule of law and development

By Tian Feilong | China Daily | Updated: 2024-04-03 07:09
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A view of the Victoria Harbor in Hong Kong. [Photo/IC]

The recent implementation of the Safeguarding National Security Bill in Hong Kong, 26 years after the return of Hong Kong to the motherland, marks a significant milestone in bolstering the special administrative region's legal framework for safeguarding national security.

The belated piece of legislation, based on Article 23 of the Basic Law of Hong Kong, signifies the advancement of the "one country, two systems" framework and highlights the political achievements of "patriots governing Hong Kong".

The Safeguarding National Security Bill, characterized by its scientific and democratic essence, will play a significant role in strengthening the rule of law in Hong Kong. The new law is comprehensive in that it integrates the substantive and procedural aspects of law as well as complements the National Security Law of Hong Kong, and identifies the offenses punishable under Article 23. In fact, it is an institutional response to the decision made by the National People's Congress on May 28, 2020, and aimed at eliminating the new national security risks, thereby plugging the loopholes in the national security legal framework.

How to understand the importance of the law based on Article 23 and its role in strengthening the rule of law in Hong Kong? Some naysayers claim the new law undermines "one country, two systems", violates the Sino-British Joint Declaration and compromises judicial independence in Hong Kong, but these are unfounded criticisms.

The new law is constitutional, based as it is on Article 23 of the Basic Law of Hong Kong, which means it advances, rather than undermining, "one country, two systems". As for the Sino-British Joint Declaration, it was never the constitutional basis for the laws of the SAR; it cannot be used as a legal basis to interfere in Hong Kong's affairs either.

According to the Constitution of the country and the Basic Law of Hong Kong, the central government has the right to supervise local legislation in the SAR. Based on that, it strongly supported the implementation of the Safeguarding National Security Bill.

Also, the new law is based on the lessons learned from and the latest legislative dynamics of national security laws in Western countries. If Western countries can update and strengthen their national security laws, why can't the SAR?

The bill's legitimacy is based on not only the direct authorization of Article 23 of the Basic Law but also the National Security Law of Hong Kong, the NPC's decision on May 28, 2020, and the NPC Standing Committee's interpretation of the National Security Law. Also, the bill is guided by the principle of "one country, two systems" in the new era, especially the highest principle of "national sovereignty, security, and development interests".

Given its robust legality and rationality, the new law strengthens the rule of law in many ways.

First, by complementing the existing National Security Law and integrating it into Hong Kong's jurisdiction, the new law lays a solid foundation for the SAR's national security governance, and better safeguards national security and interests.

Second, adopting an approach that is closer to common law practices and with its precise legal language, the new law facilitates proper understanding and application by Hong Kong's judicial system, fostering the development of structured jurisprudence in matters of national security.

Third, the new law enhances legal deterrence against both local and external forces, reinforcing trust in the rule of law and boosting the confidence of global investors and tourists in Hong Kong's safety, freedom and development, thus consolidating its legal standing on the global stage and status as a global financial center.

And fourth, the new law includes special mechanisms to safeguard judicial independence, countering undue external interference and upholding the authority of Hong Kong's judiciary.

By consolidating the foundation of national security governance, the new law promotes prosperity, stability and high-quality development of the SAR. Amid the implementation of the 14th Five-Year Plan (2021-25) and on the fifth anniversary of the Guangdong-Hong Kong-Macao Greater Bay Area development plan, the new law's emphasis on both security and development aligns with the central government's policy directives for governing Hong Kong.

With the implementation of the new law, the Hong Kong government and society can now focus on leveraging central policies to capitalize on the region's institutional and economic advantages. As Hong Kong progresses toward achieving the goals outlined in the 14th Five-Year Plan, a stable and sustainable legal environment, enhanced by the law based on Article 23, will serve as the cornerstone for policy implementation and economic growth.

People arguing that the new law is incompatible with the SAR's social and business environment lack legal basis. The truth is that the new law adheres to existing human rights standards and legal principles, and is designed to operate in Hong Kong, which has an independent judiciary and is governed by rule of law. Like the National Security Law, the new law will also be implemented based in the SAR's legal system and gradually integrate with its common law tradition.

The new law, based on a strong legal foundation, fills the gaps in Hong Kong's national security legislation and aligns enforcement and judicial mechanisms. It will thus improve Hong Kong's national security governance and help build a new environment of prosperity and stability. Its enactment is a positive institutional development for the long-term commitment to "one country, two systems" and the unleashing of Hong Kong's new developmental potential.

The author is associate dean of the Law School at Minzu University of China, and a member at the Law Association for Relations across the Taiwan Strait.

The views don't necessarily reflect those of China Daily.

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