UGCP1002 Hong Kong in the Wider Constitutional Order

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Transcript of the video lecture of Professor Jiang Zhaoxin

National Security in the Wider Constitutional Order

The Constitution and National Security

Hello, everyone. From the lecture of Professor Wang Shaoguang in this course, we learned the concept
of state capacity and the relationship between state capacity and national development. It’s important to
recognise that state capacity is a very significant concept. From this, we can understand that a country
doesn’t automatically become strong and secure once it comes into existence. A state needs to develop
various capabilities to survive internationally, protect its citizens’ rights, and promote social
development and progress. Our course takes state capacity as its core concept, and uses historical and
comparative methods to analyse and explain the various ideas and knowledge related to the
constitutional order in Hong Kong. From Prof. Wang Shaoguang’s lecture on state capacity, we can
understand that one of the reasons for China’s difficult situation since 1840 was that its state capacity,
especially the infrastructural state capacity, could not compare with the Western colonial states such as
the United Kingdom in the same period. The weakness of state capacity worsened the national
development of China after 1840. Therefore, we saw China decline into one of the poorest and weakest
countries in the world in the early 20th century. In New China after 1949, the infrastructural state
capacity was gradually established and improved, with a continuous process of national development.
This rapid development process, especially since the end of the 1970s, has allowed a weak China to rise
rapidly and surpass most countries in the world in terms of total economic output.
Based on the sufficient build-up of state capacity and the sustainable national economic-social
development, China has sufficient confidence and ability to propose the basic policy and developmental
strategy of “One Country, Two Systems.” Professor Lau Siu-kai’s lecture has introduced this point. As
an important part of the country’s constitutional order, the Hong Kong Basic Law has been enacted and
implemented with vigour and creativity, providing the basis and conditions for the long-term
effectiveness and stability of the “One Country, Two Systems” policy in the Hong Kong Special
Administrative Region. Dr. Maria Tam’s lecture also clearly explicates the content and importance of
the Basic Law.
However, China’s peaceful rise is regarded by some Western countries as a threat to their own security
and prosperity. For example, the “China threat theory” has become a guiding principle of U.S. foreign
policy and national security legislation. In this international environment, China has introduced
legislation on national security to enhance national security capacity and to protect the sustainable
development of the country. In fact, building national security capacity has become a global trend. This
includes trends in the United States and the United Kingdom. For example, many countries pay
significant attention to financial and information security. In the first lesson of this Module, Professor
Chan Kalok explained financial security; Professor Wong Kam Fai introduced some basic knowledge
about information security. In these two aspects, we can see the importance of national security capacity.
This is the second lesson of Module 4 of “Hong Kong in the Wider Constitutional Order,” Module 4(2):
The Constitution and National Security. I will start with the concept of “National Security,” pointing
out that all countries are committed to building national security capacity. China's actions are very
similar to those of other countries, especially the United States and the United Kingdom.
First of all, it should be noted that China adopts a holistic view of national security and that building
national security capacity has been included in the 13th Five-Year Plan for Economic and Social

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Development of the People’s Republic of China (2016-2020) and the 14th Five-Year Plan (2021-2025),
which is, “An Integrated Approach to Development and Security.” Especially in the text of the 14th
Five-Year Plan, the word “security” was mentioned a total of 185 times, 20 of which in the phrase
“national security.” It can be seen that the close connection between “security,” “national security,” and
national development has become a basic national policy established by the national development plan.
In other words, national security has become a basic national policy.
After you have an initial understanding of “national security,” this section will lead everyone to
understand the relationship between the constitution and national security, an important research topic
in the national constitutional order. I will first reiterate the basic meaning of the Constitution and the
implementation of the Constitution in this part and explain how the Chinese Constitution is applicable
in the Hong Kong SAR. Secondly, by analysing the provisions of the Preamble of the Constitution and
other key provisions, I will explain in detail the internal relationship between national security and the
“Constitution.” I suggest that everyone should understand China’s “Constitution” as a point of departure
for understanding the significance of Hong Kong’s safeguarding of national security. This is a very
important starting point for this lesson.
Through this lesson, we will appreciate the fact that the National Security Law is not just a criminal law
about crime and punishment, nor is it an emergency legislation formulated by the state just to respond
to and resolve an emergency situation that is only valid for a period of time. A more comprehensive and
objective point of view is that national security is an integral part of the national constitution. Therefore,
it is necessary to broaden our vision of the National Security Law to understand the relationship between
the Constitution and national security as a whole, particularly the relationship between the Chinese
Constitution and the Hong Kong National Security Law.
This lecture includes the following parts:
1. National security as a state capacity
2. National security capacity as China’s “new development philosophy”
3. National security legislation: safeguarding national security with laws
4. The constitution and national security: the case of the United States
5. China’s Constitution and national security
6. Conclusion

1. National Security as a State Capacity

1.1 The Meaning of National Security

Let us first take a look at the first part about national security as a state capacity and explore the meaning
of national security.
Scholars have not given a clear, unified, and authoritative definition of the term “national security.”
However, according to the Handbook of U.S. National Security (2018) published by Oxford University,
the authors define “national security” as “one of the most ubiquitous terms used in politics today — the
catch-all justification for all sorts of actions taken by governments.” According to the views of the
authors of the Handbook:
1. When the term first began to enter general use, it was often understood in terms of protecting a country
against internal subversion and external military attack, but over time, its definition has expanded to
cover anything that poses a threat to a country’s ability to wield the tools of statecraft, or that
compromises national security and freedoms.

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2. The term “national security” is not present in the U.S. Constitution and entered the political lexicon
only immediately before World War II. From that point, it began to replace the older conception of
“national interest” as the principal concern of the U.S. government in foreign policy and defense.
3. In the 21st century, it is generally accepted that, alongside military matters, national security must
encompass other concerns, including economic, climate, energy, and cyber issues, etc.
Here, we can see that the U.S. scholars’ definition of national security can include protecting a country
from the threat of internal subversion and external military attack, national security as another
presentation of national interest, and “national security” as a term replacing “national interest” as the
principal concern of a government in the realm of foreign policy and defense. Meanwhile, the definition
of national security is still expanding.
In China, the meaning of national security is clearly defined by law. This is very different from the
United States. According to Article 2 of the PRC National Security Law (2015), “national security
means the status in which the state’s political regime, sovereignty, unity, and territorial integrity, the
welfare of the people, sustainable economic and social development, and other major interests of the
state are relatively free from danger and internal or external threats, and the capability to maintain a
sustained status of security.”
This provision indicates that China and the U.S. share a similar stance on the definition of national
security. In other words, national security has at least two aspects. On the one hand, it refers to the
secure state of a country. On the other hand, it refers to the state capacity to secure a country. When we
understand the concept of national security, it is easy to grasp the idea of national security as an actual
secure state, but we need further analysis of (national) security as a capacity.

1.2 How to Understand National Security Capacity: Examples of the U.S. and the U.K.
We can understand the concept of “national security capacity” by analysing how the United States and
the United Kingdom view and develop national security capacity. In order to pursue the realization of
national security goals, all countries, without exception, promote and strengthen national security
capacity. The United States and the United Kingdom are two of the most typical examples.
Let us first understand how the United States strengthens its “national security capacity”:

The Whole-of-government Approach of the U.S.

Generally speaking, the way the United States improves and strengthens its national security capacity is
the whole-of-government approach. What is the whole-of-government approach? The holistic view of
national security of the U.S. is the whole-of-government approach. The U.S. began issuing its annual
National Security Strategy (NSS) in 1987 and has since formed a routine practice. According to the law
of the U.S., the NSS is to be sent from the President to Congress in order to communicate the national
security vision of the current President to the Congress. The NSS provides discussions on proposed uses
of all facets of the U.S. power needed to achieve the nation’s security goals. The report is obligated to
include a discussion of the United States’ international interests, commitments, objectives, and policies,
along with the defense capabilities necessary to deter threats and implement the U.S. security plans.
For example, the 2010 National Security Strategy Report of the Obama administration of the U.S. clearly
stated the title “Strengthening National Capacity - A Whole of Government Approach.” With this
approach, “we (the U.S.) must balance and integrate all elements of American power and update our
national security capacity for the 21st century.” According to this strategy, the United States not only
needs to mobilize various forces in the United States to enhance its national security capacity, but also
requires its allies to do the same.
According to this report, the “whole-of-government approach” or the “whole-of-government” policy
requires cooperation among various government departments, including aspects of national defense,
foreign affairs, economy, development, etc. This also includes cooperation with “The American People
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and the Private Sector.” “We (the U.S) must tap the ingenuity outside government through strategic
partnerships with the private sector, nongovernmental organizations, foundations, and community-based
organizations. Such partnerships are critical to the U.S.’s success at home and abroad.” This is quoted
from the original text of the National Security Strategy Report of the U.S. The “whole-of-government”
approach of the United States to enhancing national security capacity links the development of the
economy, education, immigration, infrastructure, scientific innovation, health care, and reduction of the
federal deficit to the national security of the United States. The Report also requires a “‘seamless
coordination’ among Federal, state, and local governments”. That is seamless cooperation between the
central and local governments.
From this, we can see that, in simple terms, the United States mobilizes various public and private
resources in the country and society to improve its national security capacity through the “whole-of-
government” approach. This is the holistic view of national security in the U.S. Based on its enduring
national interests in “security, prosperity, values, and international order,” the United States advocates
“a comprehensive range of national actions” to enhance its national security capacity, and it adopts a
broad conception of what constitutes its national security. For the U.S., “security” means “the security
of the United States, its citizens, and U.S. allies and partners”; “prosperity” means “a strong, innovative,
and growing U.S. economy in an open international economic system that promotes opportunity and
prosperity”; “values” means “respect for universal values at home and around the world”; “international
order” means “an international order advanced by U.S. leadership that promotes peace, security, and
opportunity.” Apparently, the concept of national security in the United States greatly emphasizes the
relationship between security and development, and both must be taken care of.
In October 2022, the National Security Strategy report issued by the White House of the United States
further strengthened the principle of the “whole-of-government” approach, emphasizing that the
national security strategy adopted by the Biden administration is “a 360-degree strategy grounded in the
world as it is today”. China was mentioned 46 times in the report, which clearly states that: “The PRC
is the only competitor with both the intent to reshape the international order and, increasingly, the
economic, diplomatic, military, and technological power to do it… the PRC presents America’s most
consequential geopolitical challenge”.
We can see that the United States regards the rising China as its biggest rival. In recent years, it has
continuously launched trade wars against China, such as imposing tariffs on Chinese products entering
the United States and launching a technology war. For example, the United States uses the power of the
state to contain Huawei’s development. These are all manifestations of the U.S. government’s “whole-
of-government” approach. In this process, Hong Kong has become one of the important targets in the
national security strategy adopted by the United States against the rise of China. In this international
situation, China urgently needs to deal with the challenges of national security. Its awareness of national
security is growing and strengthening day by day relatively. Therefore, regarding Hong Kong’s future
development, how to protect and safeguard China’s national security under the influence of the U.S.
national security strategy is an issue that deserves attention.
Let’s use the U.K. as an example to understand how to enhance the state security capacity:

The Fusion Doctrine of the U.K. on National Security

In the 2018 National Security Capabilities Review, the U.K. government's national security strategy,
like that of the U.S., also tries to “develop, deliver and deploy our (the U.K.’s) considerable national
security capabilities to maximum collective effect.” (U.K. Cabinet Office 2018:3) This is the basic
purpose of the National Security Capabilities Review of the U.K. To maintain the United Kingdom’s
national security and protect “people, global influence and prosperity,” the U.K. government has set
three strategic goals. The first goal of national security is to “protect our (the U.K.’s) territory, economic
security, infrastructure and way of life.” The second goal of national security is to “project our (the
U.K.’s) global influence. The third goal of national security is to “promote our (the U.K.’s) prosperity.”
The national security strategy adopted by the U.K. is a “new national security doctrine, the Fusion
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Doctrine,” in order to support the “whole-of-government” approach. In short, similar to the adoption of
the U.S., the U.K.’s fusion doctrine of national security identifies and uses a range of national security
capabilities available to them to promote various and broad national interests. Security, development,
and prosperity are indispensable parts of them.
In the U.K. government’s Integrated Review Refresh 2023, China is identified as presenting “the epoch-
defining and systemic challenge” to the U.K. Therefore, a major strategic conclusion reached by the
U.K. government is to double funding to build China’s capabilities across the government. Another
strategic decision made by the U.K. government is to increase investment to establish a College for
National Security within the U.K.’s national security institutional framework, which will initiate and
deliver the national security curriculum. From this perspective, it appears clear that the U.K. and China
are the same in terms of national security education.

The Lesson to China based on the Concept of National Security from the U.S. and the
U.K.
So, what’s the lesson for China in terms of the basic attitude and strategy of national security and the
national security capacity embedded in the concept of national security in the U.S. and the U.K.? To
sum up, both the United States and the United Kingdom regard national security capacity as a key means
to achieve the goals of their respective national security policy. Both countries are constantly expanding
the influence of national security. Both lean towards the Fusion Doctrine and the “whole-of-government”
approach in their national security so as to realize overall and comprehensive national security to the
greatest extent.
In other words, although there is no acknowledged definition of national security, and the scope of
national security keeps expanding, this fact does not prevent “national security” from becoming a global
concern that many countries are paying great attention to. This is especially true in the U.S. and the U.K.
Similarly, it is difficult for us to find an acknowledged definition of “national security capacity,” but
this does not prevent all countries in the world from strengthening the construction of national security
capacity. In this regard, the United Kingdom and the United States are the most typical examples. Since
the beginning of the 21st century, the United Kingdom and the United States have been trying to increase
their national security capacity, focusing on the holistic approach to national security and improving
their national security capacity through the “whole-of-government” approach.
China enacted the National Security Law of the People’s Republic of China in 2015. Article 3 stipulates:
“National security efforts shall adhere to a comprehensive understanding of national security, make the
security of the People their goal, political security their basis and economic security their foundation;
make military, cultural and social security their safeguard and advance international security to protect
national security in all areas, build a national security system and follow a path of national security with
Chinese characteristics.” This article appears to be a very broad article, but in fact this article clearly
emphasizes that China adopts a “holistic” view of national security, which is similar to the concept and
principles of national security followed by the United Kingdom and the United States. They both
strengthen their national security capacity through various means.
In this sense, we can understand that as national security issues become increasingly important around
the world, national security capacity will inevitably become an important part of national capacity
building in every state. In other words, if we want to understand China and national security issues, we
need to understand the concept of national security capacity.

2. National Security Capacity as China’s “New Development philosophy”

2.1 National Security Consciousness in China's “New Development Philosophy”
Professor Wang Shaoguang mentioned in his book on “New China” that the development of New China
after 1949 has gone through four stages. Among them, the fourth stage is summarized by scholars as the

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stage of “socialism with Chinese characteristics 4.0”. This stage started in 2021 and is an ongoing new
development stage.
According to the Chinese official statement, this stage means that after China has built a moderately
prosperous society on a comprehensive scale and has realized its First Centenary Goal, China has now
embarked on a new journey to build China into a modern socialist country on a comprehensive scale
and advance toward the Second Centenary Goal, signaling a new development stage. Here, the “two
Centenary Goals” is a formal expression frequently used by the central government of China. The First
Centenary Goal refers to the establishment of a moderately prosperous society on a comprehensive scale
by the 100th anniversary of the founding of the Communist Party of China (1921-2021). The Second
Centenary Goal refers to the establishment of a great modern socialist country that is prosperous, strong,
democratic, culturally advanced, harmonious, and beautiful by the 100th anniversary of the founding of
New China (1949-2049). From this statement, we can see that the goal of China’s “new development
stage” is very clear, that is, “a modern and strong country.” This is also the “vision” of modernization
mentioned by Professor Ambrose King, the CUHK former President when he talked about China’s
modernization transformation (in the course “Understanding China”).
In January 2021, when Chairman Xi Jinping explained the basic concept of China’s “new development
stage,” he emphasized “grasping the new development philosophy from a consciousness of hardship.”
In fact, this emphasizes the consciousness of crisis in China’s “new development philosophy” and the
importance of national security. To understand this, we can directly read part of the original text of the
first chapter of the “14th Five-Year Plan” about “Development Environment”:
“There are profound and complex changes in China’s development environment. China is now in an
important period of strategic opportunity for development and will remain so for some time to come,
but the opportunities and challenges it faces are changing. The world today is undergoing critical
changes that were not encountered in the last century. The new round of technological revolution and
industrial transformation is gaining momentum, and there is a profound shift in the balance of
international power. Peace and development remain the themes of the times, and the concept of a
community with a shared future for mankind is deeply rooted in people’s minds. At the same time, the
international environment has become increasingly complex with obviously increased instability and
uncertainty. The COVID-19 pandemic is exerting an extensive, far-reaching impact around the world—
the global economy is in the doldrums, economic globalization is encountering headwinds, and dramatic
changes are taking place in the global energy supply and demand landscape. The international economic
and political landscapes are complex and fickle, and the world is entering a period of turbulent changes,
with unilateralism, protectionism, and hegemonism posing a threat to world peace and development.”
This paragraph can explain why China’s 14th Five-Year Plan for National Economic and Social
Development (2021-2025) (hereinafter referred to as the “14th Five-Year Plan”) has four chapters (Part
15, Chapters 52-55) specifically stipulating the relationship between national security and national
development. It is very clear that national security has become an important and indispensable basic
concept in the “new stage” of China’s national development. I will continue to explain this point below.

2.2 National Security Capacity has become the Goal of National Economic and Social
Development
We need to have a further understanding of how the national security capacity has become the goal of
national economic and social development. It should be noted that from previous lessons, we have
already understood the vital significance of the concept of state capacity to China’s national
development. Among the basic national capacity, there is one called the capacity to steer. Based on this
national capacity, the central government can formulate national development goals and implement
plans for a certain period. This is the basic meaning of “planning.” For example, according to the
Preamble of the 14th Five-Year Plan for National Economic and Social Development of the People’s
Republic of China (2021-2025), it “clarifies China’s strategic intentions and the government’s priorities,

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and guides market participants in their activities. It is a blueprint for China's new journey towards a
socialist modern country and a joint action plan of the Chinese people.”
The state capacity to formulate “plans” plays a very obvious role in the process of China’s national
development. China began implementing the first five-year plan (1953-1957) in 1953 and has now
formulated and implemented the 14th five-year plan (2021-2025). That is to say, the national
development of New China is largely based on the development goals set in the previous five-year plans.
It is a step-by-step and cumulative process. However, it was only in the 13th Five-Year Plan (2016-2020)
of the 21st century that China began to incorporate building national security capacity into its national
economic and social development planning. It is a milestone event to list establishing a national security
system as the priority of national development. According to the four sections in Chapter 73 of the 13th
Five-year Plan, they explicitly raised the idea of the “national security capacity”: China will “fully put
into effect the holistic view of national security, implement a national security strategy, and keep
working to improve national security capacity, so as to effectively safeguard Chinese national security.”
The “holistic view of national security” raised by China is like the whole-of-government approach and
the fusion doctrine in the United States and the United Kingdom. It tries to enhance national security
capacity through efforts in various aspects. For instance, Section 4 of Chapter 73 raises the idea of
strengthening the rule of law in national security: China will “implement the National Security
Law…We (China) will promote legislative work in areas involving national security such as national
economic security, non-proliferation, national intelligence, cybersecurity, export control, foreign agent
registration, and security reviews for businesses involving foreign capital; speed up efforts to improve
the system of laws relating to national security; and make full use of legal means in safeguarding national
security.” Here, we can see that from the perspective of China’s holistic view of national security; China
is committed to improving its national security capacity by enhancing and strengthening its national
legislative capacity by making various types of laws.

2.3 “14th Five-Year Plan”: Enhancing National Security Capacity as a Basic National
Policy
Let us take a look at the content of the 14th Five-Year Plan. The significance of building national security
capacity is reflected in the 14th Five-year Plan to a larger extent by enhancing national security capacity
as a basic national policy, according to the content in Part 15 (An Integrated Approach to Development
and Security; Building A Higher Level of Safe China) in the 14th Five-year Plan. They form the overall
path to “An Integrated Approach to Development and Security.” In other words, for China, development
and security are equally important. That is why we need to take the issue of national security and national
security capacity seriously.
For example, it is stated in Part 15, “An Integrated Approach to Development and Security; Building a
higher level of safe China” that China “adheres to a holistic view of national security, implements
national security strategy, safeguards and shapes national security, coordinates traditional and non-
traditional security, integrates security into all fields and the entire process of national development,
forestalls and dissolves all risks that affect the modernisation of our country (China) and builds a strong
national security fence.” Chapter 52 is dedicated to formulating in detail how to “strengthen the national
security system and capacity building.” To facilitate our understanding, let us quote and go through the
original text of the provisions in Chapter 52. The excerpt related to national security is as follows:
(China will) “Adhere to the organic unity of political security, people's security, and the supremacy of
national interests, taking people's security as the purpose, political security as the foundation, economic
security as the basis, and military, technological, cultural, and social security as guarantees to
continuously enhance national security capacity.
(China will) Improve a centralized, unified, efficient, and authoritative national security leadership
system; improve the national security legal system, strategic system, policy system, talent system, and
operating mechanism; and improve national security legislation, systems, and policies in important areas.

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(China will) Consolidate the people’s defense line in national security, strengthen national security
publicity and education, enhance the national security consciousness of the whole people, and establish
and improve mechanisms for research and judgment on national security risks, coordination on
preventive control, and preventive resolution.
(China will) Improve the national security review and supervision system, and strengthen national
security law enforcement.
(China will) Resolutely safeguard the security of its political authority, its system, and its ideology,
comprehensively strengthen the cyber security system and capacity building, earnestly maintain security
in new areas, and strictly prevent and severely crack down on hostile forces’ infiltration, sabotage,
subversion, and separatist activities.”
After reading the above original content of the “14th Five-Year Plan”, we will understand that
fundamentally, national development and national security are both basic national policies related to
China’s future. Therefore, we see keywords in the 14th Five-Year Plan, including terms such as
“national security capacity,” “improving national security legislation,” “strengthening national security
education,” “preventing and cracking down on infiltration, sabotage, subversion, and separatist
activities,” all of which are consistent with Hong Kong National Security Law. In other words, the
fundamental reason for Hong Kong’s national security legislation comes from the integrative
consideration of the relationship between China's national development and security.

3. National Security Legislation in China: Safeguarding National Security with Laws

3.1 National Security Law in 2015

After we have understood the importance of the national security capacity in holistic state development
from a comparative perspective, now let’s take a look at how to understand the legislation of national
security in China by making laws to protect national security. We will take a look at the National
Security Law in 2015. China has only begun to establish its holistic view of national security in the 21st
Century. However, China did not enact its first National Security Law until 2015. Compared with the
United States and the United Kingdom, China is actually a latecomer in developing its national security
legal system and enhancing its national security capacity.
On July 1, 2015, the Standing Committee of the 12th National People's Congress passed the “National
Security Law of the People’s Republic of China”, consisting of seven chapters and 84 articles. This law
first reflects that building national security capacity is on the rise worldwide. This had an impact on
China, leading to China’s legislation on national security. This is a framework statute on China's national
security, which stipulates the general principles of national security, the division of tasks and
responsibilities, basic systems and protections, and the obligations and rights of civil organizations to
maintain national security. In short, this law has laid the foundation for China to improve its national
security legislation and respond to new challenges facing China’s national development.
For example, in the General Provisions of Chapter 1 of the National Security Law of China, Article 1
provides the aims of the Law, “to maintain national security, to defend the people's democratic
dictatorship and the socialist system with Chinese characteristics, to defend the fundamental interests of
the people, to ensure the implementation of the reform and opening up and establishment of socialist
modernization and to realize the great revival of the Chinese nation.” Furthermore, we need to pay
attention to some specific terms, such as “to maintain,” “to defend,” “to ensure,” they are obviously all
related to national security capacity. In other words, without sufficient capacity, there is no security.
This illustrates the importance of national security capacity. Article 2 provides the definition of national
security, which refers to “the relative absence of international or domestic threats to the state’s power to
govern, sovereignty, unity, and territorial integrity, the welfare of the people, sustainable economic and
social development, and other major national interests, and the ability to ensure a continued state of
security.”
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Article 3 stipulates the holistic view of national security: “national security efforts shall adhere to the
holistic view of national security, make the security of the people their goal, political security their basis
and economic security their foundation; make military, cultural and social security their safeguard and
advance international security to protect national security in all areas, build a national security system
and follow a path of national security with Chinese characteristics.” This is actually the same as the
content of the 14th Five-Year Plan.
From the holistic view of national security, we can see that the meaning of national security covers many
aspects, including people, politics, economics, military, culture, society, and international relations.
From this legal definition, we can see that it would be a biased view to consider national security as only
related to crime and punishment. Such a view would be inconsistent with objective facts. Therefore,
when we get to know and understand the Hong Kong National Security Law (2020) and the
Safeguarding National Security Ordinance in Hong Kong (2024), we need to at least pay attention to
some basic concepts in China’s National Security Law (2015), including at least the general provisions,
concepts, and the holistic view of national security. This also includes the provisions in Articles 11 and
40. According to Article 11, all citizens of the PRC “shall have the responsibility and obligation to
maintain national security. The sovereignty and territorial integrity of China shall not be infringed upon
or partitioned. Maintaining the sovereignty, unity, and territorial integrity of the state shall be the
common obligation of all Chinese people including Hong Kong and Macao compatriots and Taiwan
compatriots.”
Article 40 states, “The Hong Kong Special Administrative Region and Macao Special Administrative
Region shall fulfill responsibilities for the preservation of national security.” This regulation provides
the source and base of legislation for making national security laws in Hong Kong.

3.2 Protecting National Security by Law

The National Security Law in China clearly stipulates improving national security by law. For example,
Article 69 stipulates, “The State shall complete a system of national security safeguards and increase
capacity to preserve national security.” Article 70 stipulates, “The State shall complete the system of
laws on national security and promote the establishment of national security based on the rule of law.”
In fact, from the enactment of the “Anti-Secession Law of the People’s Republic of China” in 2005 until
the revision of the “Law of the People’s Republic of China on Guarding State Secrets” in June 2024,
China has formulated and revised nearly 30 laws related to national security. It has not reached 30, but
close to 30. For instance, between January 2023 and June 2024, the Standing Committee of the National
People’s Congress enacted and passed four laws, including “the Law on Foreign Relations of the
People’s Republic of China,” “the Law of the People's Republic of China on Foreign State Immunity,”
and the “Food Safety Law of the People's Republic of China.” Additionally, they revised five laws,
including the “Counter-Espionage Law of the People's Republic of China,” the “National Defense
Education Law of the People’s Republic of China,” the “Emergency Response Law of the People’s
Republic of China,” the “Frontier Health and Quarantine Law of the People’s Republic of China,” and
the “Law of the People's Republic of China on Guarding State Secrets.” In less than two years, this
series of legislation in crucial areas of national security signifies the formation of a legal system for
national security, with the National Security Law at its core. (Ye Qing, 2024)
In fact, the 2021 Report on the Work of the Standing Committee of the National People’s Congress
reaffirms the growing importance of national security legislation. Li Zhanshu, Chairman of the Standing
Committee of the National People's Congress, said that China “shall expedite national security
legislation. The world today is undergoing critical changes that were not encountered in the last century.
Protecting national security has never been more urgent.” The Standing Committee adopted a holistic
approach to national security and accelerated legislation to safeguard national security in key areas. We
formulated the Biosecurity Law and the Export Control Law, revised the Archives Law, and deliberated
draft revisions of the Maritime Traffic Safety Law, the draft of a Data Security Law, and the draft of a
Personal Information Protection Law. As these laws cover economic security, resource security, nuclear

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security, ecological security, information security, and the protection of overseas interests, they are of
critical importance for our country in tackling risks and challenges, and they address major issues of
great concern to the public.
The 2022 Report on the Work of the Standing Committee of the National People’s Congress also
highlighted that “law is the institutional cornerstone of national security.” It emphasized the importance
of the law and legislation for national security. According to the original text of the Work Report of the
Standing Committee: “Implementing the holistic view of national security and accelerating the
establishment of a legal system in the field of national security is an important content of the legislative
work of this Standing Committee. We formulated the Data Security Law to enhance national data
security capacity. We drafted, reviewed, and passed the Land Boundary Law, which legally regulates
activities such as the delineation, survey, defense, management, and construction of land borders. We
amended the Maritime Traffic Safety Law. We formulated the Anti-foreign Sanctions Law and
improved the legal system for anti-sanctions, anti-interference, and anti-“long-arm jurisdiction.”
According to this law, if any country interferes in China’s internal affairs under any pretext and in any
way which damages the interests of our country, organizations, and individuals, our country will have
the right to take corresponding countermeasures, to resolutely defend national sovereignty, security, and
development interests, and to resolutely protect the legitimate rights and interests of our citizens and
organizations.
It should be pointed out that in the original text of the work report, among national security legislations
in China, most of them were enacted and implemented intensively after 2010, which can be seen as
China’s attempts to “close legal loopholes” in national security legislation. Many of the laws were
enacted after the Hong Kong National Security Law in 2020, for example, the Anti-foreign Sanctions
Law of the People’s Republic of China and the Data Security Law of the People’s Republic of China.
Therefore, when we understand the Hong Kong National Security Law and the Safeguarding National
Security Ordinance, we need to pay attention to China’s recent progress in national security legislation.
We have to understand that the Hong Kong National Security Law and the Safeguarding National
Security Ordinance are just components of China’s legislative efforts to safeguard national security.
To sum up, we should understand several points in China’s overall approach to maintaining and
strengthening national security through legislation: First, China’s efforts to build national security
capacity serve broad national economic and social development goals. They are progress-oriented and
development-oriented. The purpose of the legislation, ultimately, is to promote and sustain China’s
development target at the “new development stage.” Second, China’s national security legislation is a
reasonable response to the global trend of increasing emphasis on national and international security. In
short, China’s national security legislation is part of an increasingly broad global dialogue around
national security. There is nothing wrong with it, and it cannot be avoided. Third, since there had been
legal loopholes regarding national security issues before 2015, China’s national security legislation in
the past ten years has served to fill the loopholes in its legal system. The establishment of the Hong
Kong National Security Law was also correspondingly filling the loophole in the law system. Fourth,
and the point worth paying attention to, is that China’s legislative approach to enhancing national
security is much the same as the action taken by the United States and the United Kingdom, or indeed
most other countries, to achieve their respective national security and development goals.
To conclude, from these perspectives, the national legislation for the Hong Kong Special Administrative
Region (HKSAR) to safeguard national security is only part of the national and world trend. We need
to understand the national security law and the national security capacity building of China, including
the HKSAR, from a broader perspective.

4. The Constitution and National Security: the Case of the United States
Then, we enter Section 4 of this lecture. Let’s take a look at the relationship between the Constitution
and national security. We take a comparative approach based on the example of the U.S. In the previous
session, we discussed the meaning of “national security” at the conceptual level and introduced the
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national security development strategies of the United States, the United Kingdom, and China. It has
been pointed out that there are many similarities in the approaches of different countries. They all focus
on various aspects of national security and the relationship between national security and overall national
development in different areas. At the same time, we can understand that maintaining and strengthening
national security through legislation is also an approach commonly used by various countries. Below,
we use a specific example to look at the relationship between the Constitution and national security
through the historical evolution of the U.S. Constitution.

4.1 A Brief Introduction to the Relationship between the U.S. Constitution and National
Security
Let me briefly introduce the relationship between the U.S. Constitution and national security. The term
“national security” does not appear in the text of the U.S. Constitution. It was not until the Cold War
period after World War II in the 20th century that the term “national security” became a term officially
used by the United States. Nevertheless, as a country, the United States has shown a high degree of
concern for “national security” since its founding. In other words, although the concept of national
security is not shown in the text of the U.S. Constitution, it does not mean that this country does not pay
attention to national security. There is a famous and important founding document in the United States
for the formulation of the Constitution and the establishment of a federal state. It is “The Federalist
Papers”. Of the first 36 short essays included, more than 25 touched on national insecurity. Most of them
linked America's international weakness to the inaction of the new federal government. The United
States’ great concern for national security is reflected in the Preamble to the 1787 Constitution. The
widely recited passage by the American people shows that one of the main goals of the Constitution and
the establishment of the United States is to maintain national security. Let us take a look at the original
text of the Preamble:
“We the people of the United States, in order to form a more perfect union, establish justice, insure
domestic tranquillity, provide for the common defence, promote the general welfare, and secure the
blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United
States of America.”
Since the end of World War II and the beginning of the Cold War, the term “national security” has been
commonly used by decision-makers in the U.S. federal government. The most typical example is the
formulation and enactment of the U.S. National Security Act in 1947. Pay attention to the fact that 1947
the U.S. had already formulated and introduced a national security law. During the Cold War, the
resources that the U.S. government devoted to strengthening national security were staggering. In 1987,
on the occasion of the 200th Anniversary of the U.S. Constitution and 40 years after the enactment of
the U.S. National Security Act, according to the research statistics of scholars, about two-thirds of the
employees of the U.S. federal government and about 40% of the fiscal budget serve the United States
national security policy.
In April 1990, around the same time Hong Kong’s Basic Law was promulgated, the National Defense
University Press of the U.S. published a collection of essays titled "Constitution and National Security:
A Bicentennial View." Its content involves the most extensive and in-depth discussion of the relationship
between the U.S. Constitution and national security by senior American politicians and famous scholars
in the past two hundred years.
The authors of the book, first of all, clearly affirmed that there is an inherent relationship between the
U.S. Constitution and national security from beginning to end. They discuss the best balance of power
between the U.S. Congress and the President concerning the power over warfare and diplomacy
stipulated by the Constitution. Edmund Muskie, a former senator and secretary of state, argues in his
introduction to the book, “Our Founding Fathers issued both branches of government an invitation to
struggle in the document they created. Our constitutional system of checks and balances does not
condemn us to unending bickering and draining impasse, however. The Constitution allows men and

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women in public office to use their considerable talents for the public good, but only when the executive
and legislative branches accept the common burden of working together. This is especially true in the
area of national security policy. Without sharing responsibility and restraint between the two branches
of government, our nation walks in shadows.” A connotative contention of “the whole-of-government”
approach is presented in this argument.
Also in 1990, as part of the commemoration of the 200th anniversary of the enactment of the U.S.
Constitution and the 40th anniversary of the enactment of the U.S. National Security Act, the Yale
University Press published The National Security Constitution written by Harold Hong-ju Koh, who
later served as the Dean of Yale Law School. The book's main point is that the U.S. Constitution
inherently contains a national security constitution. Its core principle is balanced institutional
participation and cooperation in the field of national security. Moreover, the U.S. legal system needs to
be further developed in practice and to continue to formulate an independent U.S. national security
charter. The term “national security constitution” was later gradually accepted by scholars of
comparative studies from all over the world their discussion over the relationship between U.S. national
security and the Constitution. The point on the “National Security Constitution” has a very wide
influence in the academic circles of the U.S. Constitution and national security law. The latest U.S.
textbooks on national security law and Constitution clearly focus on the concept of the “U.S National
Security Constitution.” (Geoffrey S. Corn, et al., 2021)
In addition, in 1990, the textbook of “National Security Law” in the U.S. was published. Up to now, it
has been published in its eighth edition and has become a widely used textbook in American law schools
(Stephen Dycus, et al., 2024). In other words, the textbook used for education on national security law,
which was officially formed in 1990, is now in its eighth edition. The eighth edition of this textbook is
divided into 8 parts and 36 chapters, and the content is very detailed. This means that the study of
national security law thirty years ago has become an independent legal discipline in the United States.
By comparison, education on National Security Law in Hong Kong is a small start.
The ideas of the National Security Law Study and National Security Constitution proposed on the 200th
Anniversary of the U.S. Constitution and the 40th Anniversary of the National Security Law shed light
on the relationship between the Constitution and national security. However, since the enactment of the
Hong Kong Basic Law in 1990, scholars doing research on the Hong Kong Basic Law rarely paid
attention to or mentioned the concept of a “national security constitution.” From a comparative point of
view, if we take note of the development trend of U.S. national security laws during the same period
and introduce them to students and the general public, I believe it will be easier for them to develop a
better understanding of the relationship between the Hong Kong Basic Law and national security with
better evidence.
In fact, since the enactment of the National Security Act in 1947, the United States has continued to
enact laws on national security frequently. This point, for example, can be seen very clearly from the 62
types of laws under Title 50: Wars and National Defense in the U.S. Code. That is to say, under the title
“Wars and National Defense,” there are 62 types of laws regarding national security. For example, under
the title of “Domestic Security,” the U.S. Code (U.S.C.) has six categories of laws, including Homeland
Security Organization and Cybersecurity. Under Part 1 of Title 18 Crimes and Criminal Procedure, the
strictest penalties have been adopted for Espionage (Chapter 37), Riots (Chapter 102), Sabotage
(Chapter 105), Terrorism (Chapter 113B), and Treason, Sedition, and Subversive Activities(115B).
According to Title 18 of the U.S.C., the death penalty can be given for terrorism and treason.
Under the title “War and National Defense,” the U.S. has enacted more than 60 laws, such as the Alien
Enemies Act, Espionage Act, Foreign Intelligence Surveillance Act, National Security Act, Internal
Security Act, National Emergencies Act, and the Export Administration Act. 106 categories of law under
Title 22 are related to foreign relations and intercourse. Most of these laws focus on the rules and
institutions formed by the United States based on its perception of national security and international
security issues.

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These national security laws include the “broad” national security laws and the “narrow” laws. The
former represents the sum of all levels of U.S. national security legislation, that is, the national security
constitution in a broad sense, and includes various types of laws; for “narrow” national security law, it
is the legislation directly in the name of “national security.” In the United States, “narrow” national
security laws at least include the National Security Act of 1947, the Internal Security Act of 1950, and
the Homeland Security Act of 2002. These three acts can be seen as enacted in the name of national
security. We can treat them as “narrow” national security laws.
From the above introduction to the U.S. national security legislation and the concepts of the “National
Security Constitution,” you can see that the constitutional spirit and national security are interlinked and
compatible. Additionally, the relationship between the two has become closer and wider in scope over
time. The concept of the national security constitution is based on the loyalty of the American people to
the constitution that the U.S. federal government can consistently launch its national security strategy
over a long period of time and enhance its national security capacity, ultimately protecting the national
security of the United States. Comparing the national security legislation in the U.S. with the enactment
of the Hong Kong National Security Law in 2020 and the Safeguarding National Security Ordinance in
2024, we can see that the valid and applicable national security law in Hong Kong is apparently more
delimited than the national security law in the U.S. taken in the narrow sense, in terms of quantity and
scope. Although it is not our intention to emulate the United States, the United States attaches great
importance to the concept of the national security constitution. It emphasizes the relationship between
the Constitution and national security and protects national security through legislation. This requires
us to think about how to improve the relationship between the Chinese Constitution and its national
security. It is very important for us to understand how to secure national security in Hong Kong.

5. China’s Constitution and National Security

5.1 Implementation of China’s Constitution in Hong Kong SAR

Now, we enter the 5th session of this lecture. We will examine the relationship between the Chinese
Constitution and the national security. First, we will go through the implementation of China’s
Constitution in HKSAR to understand its validity and implementation. From the preceding lessons of
this course, we have learned that the Preamble of the current constitution of China (that is, the 1982
constitution) has clear provisions on the meaning of the Constitution. The Preamble to the Constitution
states that the Constitution “stipulates the fundamental system and task of the state. It is the fundamental
law of the state and has supreme legal force. The people of all ethnic groups, all state organs and armed
forces, all political parties and social organizations, and all enterprises and public institutions in the
country… must treat the Constitution as the fundamental standard of conduct; they have a duty to uphold
the sanctity of the Constitution and ensure its compliance.”
Because the Constitution is the fundamental law of the state and has supreme legal force, every Chinese
person must abide by it. Undoubtedly, the Chinese Constitution is the “supreme legal force” in Hong
Kong. However, due to the existence of the “One Country, Two Systems” constitutional order, how the
Constitution applies to the Hong Kong Special Administrative Region needs further exploration.
According to the drafting members of the Hong Kong Basic Law and scholars, the application of the
Constitution in Hong Kong “needs to follow the basic policy of ‘One Country, Two Systems.’”
According to Professor Zhu Guobin, this policy can be understood as follows:
“(1) The Constitution as a whole applies to the Hong Kong Special Administrative Region. (2) The
application of the ‘Constitution’ in the Hong Kong Special Administrative Region needs to follow the
basic policy of ‘One Country, Two Systems’. (3) All provisions of the Constitution on safeguarding
national sovereignty, unity, and territorial integrity must apply to the Hong Kong Special Administrative
Region. (4) Regarding the ‘Two Systems,’ the provisions of the Constitution on the socialist system and
policies do not apply to the Hong Kong Special Administrative Region.”

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In fact, according to the research of scholars, “since the establishment of HKSAR in 1997, Hong Kong
courts have practiced the Constitution to address various legal issues by applying the Preamble and/or
clauses of the Constitution as part of the grounds for judgments, citing the Constitution as sources for
interpreting the Basic Law and/or other laws, and so on. Such application of the Constitution goes
beyond judicial review, deeply reaching the cores of both public law and private law.” In addition to
Hong Kong’s local courts, the practice of the National People’s Congress and its Standing Committee
in implementing the national constitution in Hong Kong is also rich and diverse. According to the
statistics of scholars, from the 1980s to January 1, 2020, the National People’s Congress (NPC) and its
Standing Committee (NPCSC) have made 45 legislative decisions concerning Hong Kong, at least 33
of which involved the implementation of the Constitution, and the application of the Chinese
Constitution in HKSAR. This includes five types of situations:
1. Implementing the Constitution and ratifying the Sino-British Joint Declaration, that is, in April
1985, the third meeting of the Sixth National People’s Congress decided to approve the Sino-
British Joint Declaration;
2. Implementing the Constitution and creating a new constitutional order in Hong Kong, which
includes the enactment of the Basic Law of Hong Kong- that is to say, the enactment of the Hong
Kong Basic Law was based on the regulation of Article 31 of the Constitution, and the enactment
of the law itself implies the implementation of the Constitution.;
3. Implementing the Constitution to deal with Hong Kong’s political reform controversy. For
example, in August 2014, the Standing Committee of the National People’s Congress made
“Decision of the Standing Committee of the National People’s Congress on Issues concerning the
Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal
Suffrage and on the Method for the Formation of the Legislative Council of the Hong Kong
Special Administrative Region in 2016”.
4. Implementing the Constitution by exercising the power of legal interpretation, that is the five
interpretations of the Hong Kong Basic Law by the Standing Committee of the National People’s
Congress. These include the interpretation of the right of abode in Hong Kong in 1999, the
interpretation of the political reform issue in 2004, the interpretation of the by-election of the chief
executive and its term in 2005, the interpretation of state immunity in 2011, the interpretation of
oath-taking by civil servants in 2016, and the interpretation of Article 14 and Article 47 of the
Hong Kong National Security Law in 2022. The contents of these interpretations by the Standing
Committee of the National People’s Congress have been briefly introduced by Dr. Maria Tam in
her lecture;
5. Implementing the Constitution and deciding on the leased zone of the SAR, for instance, the
leased zone of Shenzhen Bay Port and the Co-location Arrangement in West Kowloon High-
Speed Rail Station.
In short, the situations where the National People's Congress and its Standing Committee implemented
the national constitution in Hong Kong are rich and diverse, especially regarding the relationship
between the Constitution and national security. If we want to understand the Hong Kong National
Security Law, we need to have a basic understanding of the effect and implementation of China’s
Constitution in Hong Kong. Below, we will continue to explore the relationship between the
Constitution and national security, as well as the Hong Kong National Security Law.

5.2 The Constitution and National Security: an Overview of the Central Government's
Basic Stance
Below, we try to understand from the central government’s official discourse, as well as various major
government reports and policy documents, how the central government views the relationship between
the national constitution and national security.

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First, in Part VI (3) of the White Paper of the State Council in 2021, the State reiterates that “The
constitutional order must be consolidated to safeguard national security. The development of democracy
in the Hong Kong Special Administrative Region must consolidate the constitutional order established
by the Constitution and the Basic Law, reflecting that ‘The Hong Kong Special Administrative Region
is an inalienable part of the People's Republic of China,’ ‘the Hong Kong Special Administrative Region
shall be a local administrative region of the People’s Republic of China, which shall enjoy a high degree
of autonomy and come directly under the Central People’s Government.’ National security is the
prerequisite for peace and democracy in Hong Kong.” The full name of the White Paper is “Hong Kong:
Democratic Progress Under the Framework of One Country, Two Systems.” It was published and passed
in 2021.
We need to note from the official document of the State Council that national security is regarded as
one of the purposes of consolidating the country's constitutional order. The consolidation of the
constitutional order and Hong Kong’s democratic progress are based on the condition of national
security being maintained. From here, we will understand that the relationship between national security
and the national constitution is crucial. For example, as stated by former Premier Li Keqiang in his 2021
Work Report, the basic attitude of the Chinese government towards the relationship between national
security and the Constitution is as follows:
“We will stay true to the letter and spirit of the principle of One Country, Two Systems, under which
‘the people of Hong Kong administer Hong Kong’ with a high degree of autonomy. We will improve
the relevant systems and mechanisms of the special administrative region for enforcing the Constitution
and the basic laws; we will ensure the implementation of the laws and enforcement mechanisms for the
region to safeguard national security. We will resolutely guard against and deter external forces’
interference in the affairs of Hong Kong. We will support the region as it grows its economies and
improve people’s lives, so as to maintain the long-term prosperity and stability of Hong Kong.”
The Premier’s Work Report clearly emphasizes the need to improve the relationship between national
security and China’s constitution to establish a lasting and sustainable national constitutional order. In
short, based on the understanding of the concept of the U.S. national security constitution, we can
appreciate the fact that China’s Constitution also contains the basic content of the national security
constitution. On this basis, we can understand the relationship between national security and the
Constitution more clearly. This national security constitution partly exists in the text of China’s
Constitution. It also exists in the legislations of the National People’s Congress and its Standing
Committee, for example national laws such as the China National Security Law of 2015, the Hong Kong
National Security Law of 2020, etc. The “One Country, Two Systems” as a constitutional principle
offers guidance to balanced participation in national security affairs by the central government and Hong
Kong. For the above reasons, we need to pay attention to the concept of national security and understand
the relationship between national security and the Constitution.

5.3 Key Articles involving National Security in China’s Constitution

From the above discussion, we realize that the concept of the “National security constitution” covers a
wider scope than the text of the national constitution. In addition to the text of the national constitution,
the national security constitution also includes other legal texts related to the national constitutional
order. But we must also point out that there are still quite a few provisions directly related to national
security in the national constitution, which deserve our attention and study.

Constitutional Preamble and Clause on Defense

The preamble of the Constitution highlights China's crisis awareness of national security and the concept
of saving the country through strength: “China is one of the countries with the longest histories in the
world… After 1840, feudal China gradually became a semi-colonial, semi-feudal country. The Chinese
people, wave upon wave, waged heroic struggles for national independence and liberation and for
democracy and freedom… to build China into a great modern socialist country that is prosperous, strong,
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democratic, culturally advanced, harmonious and beautiful, and realize the great rejuvenation of the
Chinese nation… This Constitution affirms, in legal form, the achievements of the struggles of the
Chinese people of all ethnic groups and stipulates the fundamental system and task of the state.” In other
words, the Constitution was obtained through the hard work of all the Chinese people.
The Preamble of the Constitution emphasizes that after the outbreak of the Opium War, Hong Kong was
occupied by colonialist countries, triggering the heroic struggle of the Chinese people for national
security and the great rejuvenation of the Chinese nation. In this sense, the Constitution is the
fundamental law of national security. There are also provisions directly related to the national defense
and armed forces in the Constitution, such as Article 29: “The armed forces of the People’s Republic of
China belong to the people. Their missions are to strengthen national defense, resist aggression, defend
the motherland…safeguard the people’s peaceful work, participate in national development, and work
hard to serve the people. The state shall make the armed forces more revolutionary, more modernized,
and better regulated in order to strengthen national defense capabilities.” This is the clause of national
defense in the Preamble and the Constitution.

Criminal Law Clause Related to National Security in the Constitution

Let us continue to look at the criminal law clause related to national security in the Constitution. Article
28 of the Constitution is a criminal law clause regarding national security, which regulates the crime
and penalty related to national security. It clearly stipulates, “The state shall maintain public order,
suppress treason and other criminal activities that jeopardize national security.” This establishes the
legitimacy of the state to “prevent, stop, and punish” national security crimes through constitutional
provisions. The authority of Article 23 of the Hong Kong Basic Law, Article 7, and Articles 20 to 30 of
the Hong Kong National Security Law comes from this article in China’s Constitution. Since this is an
explicit provision from China’s Constitution, the previous failure of the Hong Kong government to enact
relevant laws mandated by Article 23 of the Basic Law will not affect the constitutional legitimacy of
laws to safeguard national security in Hong Kong. In other words, as far as national security crimes and
punishments are concerned, Article 28 of the Chinese Constitution will always serve as the constitutional
basis for local legislation in Hong Kong, providing an understandable legitimacy and regularity. Let us
continue to look at the regulations of national security in the Constitution.

Articles 51-55: Clauses on Constitutional Obligations concerning National Security

According to Articles 51 to 55 of China’s Constitution, the Constitution clearly stipulates the national
security obligations that Chinese citizens should have. This is clearly stipulated in the Constitution and
applies to all Chinese people. These national security obligations are:
Article 51: When exercising their freedoms and rights, citizens of the People’s Republic of China shall
not undermine the interests of the state, society or collectives, or infringe upon the lawful freedoms and
rights of other citizens.
Article 52: Citizens of the People’s Republic of China shall have the obligation to safeguard national
unity and the solidarity of all the country’s ethnic groups.
Article 53: Citizens of the People’s Republic of China must abide by the Constitution and the law, keep
state secrets, protect public property, observe discipline in the workplace, observe public order, and
respect social morality.
Article 54: Citizens of the People’s Republic of China shall have the obligation to safeguard the security,
honor and interests of the motherland; they must not behave in any way that endangers the motherland’s
security, honor or interests.
Article 55: It is the sacred duty of every citizen of the People’s Republic of China to defend the
motherland and resist aggression. It is an honorable obligation of citizens of the People’s Republic of
China to perform military service or join the militia in accordance with law.

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Articles 51 to 55 stipulate the obligations that Chinese citizens, including Hong Kong residents, must
bear, including “not undermine the interests of the state” (Article 51), “safeguard national unity” (Article
52), “abide by the Constitution and the law, keep state secrets” (Article 53) , “safeguard,” not “endanger”
“the security, honor and interests of the motherland.” In short, it is the sacred duty of every citizen of
the People’s Republic of China to defend the motherland and resist aggression. (Article 55). Articles 51
to 54 can be regarded as negative obligations of national security in the Constitution, that is, the
obligation of Chinese citizens not to engage in any behavior that will endanger national security; article
55 is a positive obligation in the Constitution, that is, Chinese citizens’ obligation to actively take actions
to maintain national security, such as the obligation to perform military service.
According to the principle of “One Country, Two Systems,” the text of Hong Kong Basic Law obviously
does not include all the national security obligations in the Constitution. The 66 articles in the text of
the Hong Kong National Security Law in 2020, no matter how they are interpreted and understood, are
only intended to require the people of Hong Kong to fulfil negative constitutional obligations, that is, to
a large extent, they only require the people of Hong Kong not to become the source to undermine
national security. This principle is reflected in the Decision of the National People’s Congress on
Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special
Administrative Region to Safeguard National Security, passed on 28 May 2020.
It is clear that the decision does not cite other national security obligations, but merely uses Article 52-
on safeguarding national unity and Article 54- safeguarding the security, honor and interests of the
motherland as the constitutional mandates for the NPC Standing Committee to formulate the Hong Kong
National Security Law. That is to say, the legislation of the Hong Kong National Security Law still
shows the country's strict adherence to “One Country, Two Systems” in not requiring the people of
Hong Kong to fulfil all the national security obligations clearly stipulated in the Constitution that all
Chinese should have—for example, military service as stipulated in Article 55.

5.4 Chapter 4 of the Constitution: National Symbols and Emblems

From the perspective of a holistic view of national security, legally ensuring that national symbols and
emblems are respected and protected and that no desecration or abuse of these national symbols and
emblems is tolerated is also an important measure to protect national security.
Chapter 4 of China’s Constitution specifically regulates China’s national flag, national anthem, national
emblem:
Article 141: The national flag of the People’s Republic of China is a red flag with five stars. The national
anthem of the People’s Republic of China is the March of the Volunteers.
Article 142: The national emblem of the People’s Republic of China consists of an image of Tiananmen
Gate in the center illuminated by five stars and encircled by spikes of grain and a cogwheel.
As Chinese citizens, it is a constitutional obligation to respect and protect the dignity of national symbols
such as the national flag, national emblem, and national anthem. In particular, it should be noted that
national laws on the national flag, the national emblem, and the national anthem have special
significance in developing the national identity of Hong Kong youth students. Hong Kong has enacted
and implemented relevant ordinances to promote and protect the dignity of the national anthem, the
national flag and the national emblem and to punish crimes such as desecrating the national flag or the
national emblem (Refer to Section 7 of National Flag and National Emblem (Amendment) Ordinance
2021) or insulting the national anthem (Refer to Part 3 of National Anthem Ordinance).
For example, the National Flag and National Emblem (Amendment) Bill stipulates that: A person
commits an offence if the person publicly and intentionally desecrates the national flag or national
emblem by burning, mutilating, scrawling on, defiling or trampling on it or its image or in any other
way. A person who commits an offence under this section is liable on conviction to a fine at level 5 and
imprisonment for 3 years. In April 2020, the Court of Appeal of the High Court made a ruling in the

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UGCP1002 Hong Kong in the Wider Constitutional Order

case of “Secretary for Justice v. Law Man-chung” that “the respondent is sentenced to 20 days’
imprisonment for the offence of desecration of the national flag”. According to paragraph 30 of the
judgment of the case, the presiding judge summarized and reiterated the “legislative intent” of the crime
of desecrating the national flag as stated by the Hong Kong Court of Final Appeal in concise language.
All students need to pay attention to this. The first legislative intent is:
1. A national flag is the symbol of a nation. It is a unique symbol. All nations have flags. National
emblems are also common. The national flag is the symbol of the People’s Republic of China. It is the
symbol of the State and the sovereignty of the State. It represents the People’s Republic of China with
dignity, unity, and territorial integrity.
2. The society in the People’s Republic of China, the country as a whole, including the Hong Kong
Special Administrative Region, has a legitimate interest in protecting its national flag, the unique symbol
of the Nation.
3. Flag desecration is a symbolic expression or non-verbal expression. The prohibition of desecration of
the national and regional flags by section 7 is not a wide restriction of the freedom of expression. It is a
limited one. It bans one mode of expressing whatever message the person concerned may wish to express,
that is the mode of desecrating the flags. It does not interfere with the person’s freedom to express the
same message by other modes.
4. Section 7 seeks to protect the dignity of the flag in question as a symbol. In order to be effective, the
section must protect it against desecration generally.
5. Section 7 is necessary for the protection of public order. There are justified restrictions on the right
to freedom of expression, which are constitutional.

6. Conclusion
Let’s draw a brief conclusion from this lecture. From the perspective of the relationship between the
national constitution and national security, we can see that China’s constitution, the Hong Kong Basic
Law, the Hong Kong National Security Law (2020), and the Safeguarding National Security Ordinance
have jointly created a national constitutional order based on national security. Correspondingly, Hong
Kong courts and other authorities of the SAR need to jointly exercise national security powers,
formulate case law, and form national security habits so as to achieve the goal of safeguarding the
Constitution and national security. We can argue that the national security provisions in China’s
Constitution are closely intertwined with the principle of “One Country, Two Systems” in the country’s
constitutional order. Therefore, the two laws safeguarding Hong Kong’s national security (2020; 2024)
aim to incorporate national security into part of the top-level design of the country during the
implementation of China’s Constitution in the Hong Kong Special Administrative Region. Its
importance is self-evident.
We must realize that the national security laws applied in the HKSAR are closely related to the
development of the entire country and have broad and profound implications. To put it briefly, the Hong
Kong National Security Law and the Safeguarding National Security Ordinance in Hong Kong are
inseparable parts of China’s national constitutional order and may have a major impact not only on the
development of the Hong Kong Basic Law, but also on the common destiny of the country and HKSAR.
We will further explain in detail the basic principles, provisions, and court proceedings of the currently
effective national security laws in the following two lessons.
Thank you.

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