The Hong Kong National Security Law: The Shifted Grundnorm of Hong Kong’s Legal Order and Its Implications

Abstract

The promulgation of the Law of the Hong Kong National Security Law (‘NSL’) has exerted sweeping influences over Hong Kong’s common law system. This book chapter aims to examine the theoretical advancement underlying the NSL legislation and the Chinese law implications of the NSL for Hong Kong’s legal system. The first part introduces the key constitutional and Basic Law narratives advocated by mainland officials and scholars to justify the legality of the NSL legislation. Those constitutional narratives attempt to extend the validity of the PRC Constitution to Hong Kong and explain away the legal autonomy guaranteed by Article 18 of the Basic Law and Article 31 of the PRC Constitution. In the NSL era, Hong Kong is embracing a Constitution-based legal order in place of the one based on the Basic Law. Along with the theoretical advancement, national norms and central institutions have been channeled into the HKSAR through the implementation of the NSL. The second part of this chapter explores the implications of such normative and institutional changes for Hong Kong law and Basic Law practices. It focuses on five areas: the application of mainland laws in Hong Kong, the interpretation of the NSL, cross-border criminal jurisdiction, national security institutional infrastructure, and the legal language. To some extent, the enactment of the NSL is like a silent constitutional reform that has reshaped, and will continue to reshape, a wide range of aspects of Hong Kong law as well as the Basic Law. Due to the dualistic nature of the NSL as a national law which applies to both the mainland and Hong Kong, it has also expanded and deepened the interaction and conflict between legal systems in the two regions, highlighting the inherent tension of maintaining the unity of a heterogeneous legal order under one country, two systems.