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National Security Law in Hong Kong: One Year On

(Forthcoming, 2022) 30 Academia Sinica Law Journal
University of Hong Kong Faculty of Law Research Paper No. 2022/01

31 Pages
Posted: 4 Jan 2022

Johannes M M Chan (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=524853)

The University of Hong Kong - Faculty of Law

Date Written: October 25, 2021

Abstract
Enacted by the National People's Congress for the Hong Kong Special Administrative Region ("HKSAR"), the National Security Law (“NSL”) came into effect on
30 June 2021. The NSL was pushed through the legislative process within a short period of time without any meaningful consultation of the people of Hong
Kong, and since its enactment, it has changed the social, legal and political landscape in Hong Kong in a most profound manner. This article examines the
constitutional, legal and social impact of the NSL, and how it affects the nature and prospect of the “One Country, Two Systems” constitutional model in the
HKSAR. It challenges the justification for enacting the NSL for Hong Kong that there is a failure of the HKSAR to discharge its constitutional duty to enact
national security law under Article 23 of the Basic Law. Apart from enhancing the protection of national security, it is argued that NSL further serves the
purposes of implementation of the Mainland Government’s conception of “full control of governance” and of weakening the role of the judiciary. Sadly, it finds
the performance of the judiciary in protecting fundamental rights under the NSL less than encouraging. It concludes that the NSL underlines the Mainland’s
blueprint of “One Country, Two Systems”, the goal of which is to maintain an economic system in Hong Kong that is run by patriots who would not challenge
the authority of the executive government, and supported by a compliant legislature and a deferential judiciary. It highlights the room for a responsive judiciary
under such constraints, but it argues that the hope of maintaining an independent judiciary is less than optimistic.
Keywords: National Security Law, Judicial independence, One Country Two Systems, Responsive Judiciary
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