The Hong Kong Special Administrative Region government launched on Tuesday the public consultation on legislation according to Article 23 of the Basic Law.
This consultation, like the one in 2002, aims to fulfil the HKSAR’s constitutional responsibility of safeguarding national security. The only difference is that the new consultation document is more comprehensive than the previous version. It is more accurate in aligning with the holistic view of national security, more profound in summarizing the HKSAR’s past experience in responding to national security threats, more targeted toward the latest international situation and the new security risks it has brought about, and more focused on improving the legal system and enforcement mechanisms for safeguarding national security.
Therefore, I believe the HKSAR government will fully consider public opinions, consolidate consensus, strive to complete the legislation as soon as possible and protect the fundamental interests of every resident.
To succeed in legislation, society must achieve a basic consensus: When it comes to safeguarding national security, there is only the responsibility of “one country” and no distinction of “two systems”. The HKSAR is part of China and is a local administrative region with a high degree of autonomy, directly under the Central People’s Government of the People’s Republic of China.
The consultation document proposes that the definition of national security in local legislation in the HKSAR should be consistent with the definition of national security in national laws. This approach ensures that the HKSAR aligns with the overall national security concept and realizes that anywhere within the country there is only one set of national security standards.
Hostile forces have long smeared Article 23 legislation, describing it as a tool for suppressing dissent and eroding human rights and freedoms.
The truth is, prior to the implementation of the National Security Law for Hong Kong (NSL) in June 2020, Hong Kong experienced a series of campaigns that advocated for “Hong Kong independence”, “self-determination” or “city state”, including the “Occupy Central” illegal movement in 2014, the Mong Kok riots in 2016, and the monthslong “black clad” riotous movement in 2019-20.
These incidents led to social unrest, widespread violence, vandalism of government buildings, transportation disruptions, and intimidation of law enforcement officers and their families. Contrary to the opposition’s claims, it is because Hong Kong lacked the safeguard of a national security law that human rights and freedoms were eroded.
The aforementioned examples that severely threatened national security clearly demonstrate that Hong Kong has not sufficiently safeguarded national security since its return to China. Legislation to safeguard national security is only targeted at a small number of individuals and organizations that pose a threat to national security.
Like the NSL, the Article 23 legislation respects residents’ rights and freedoms prescribed in the Basic Law, such as freedom of speech, press, publication, association, assembly, procession, and demonstration.
The current consultation takes into full consideration the latest international situation and the new security risks it has brought about. Therefore, the Article 23 legislation, in addition to preventing, deterring and punishing five major types of acts that harm national security, also aims to address new security risks.
I hope that the HKSAR government can fulfill this historical mission, successfully complete the Article 23 legislation, address the long-standing gaps in national security protection, and ensure national political power, sovereignty, unity, territorial integrity, people’s well-being, sustainable economic development, a thriving society, and open a new chapter for Hong Kong’s progress and prosperity
Noteworthy legislative proposals include improving the current Crimes Ordinance related to “sedition” and relevant offenses, codifying the offense of “misprision of treason” as statutory law instead of a common law offense, enhancing the existing Official Secrets Ordinance by providing a detailed definition of “State secrets”, improving the offenses and provisions related to “espionage activities”, prohibiting participation in or support of foreign intelligence organizations or receiving benefits from them, introducing new offenses to fully protect public infrastructure, combating acts that harm national security through computers or electronic systems, prohibiting anyone from colluding with foreign forces to influence the Central People’s Government and the HKSAR government in formulating or implementing policies or measures, the Legislative Council and the Judiciary, and interfering in the elections of the HKSAR.
Some opponents who have fled overseas criticize the proposed Article 23 legislation, claiming that it is much harsher than the version proposed in 2003 and contains many ambiguities and gray areas with numerous traps. Perhaps they are unaware that since 2003, the United Kingdom alone has enacted five relevant national security laws, including National Security Act 2023, National Security and Investment Act 2021, Terrorist Offenders (Restriction of Early Release) Act 2020, Terrorism Prevention and Investigation Measures Act 2011, and Terrorism Act 2006. Are these not considered draconian? Moreover, does the United States, which has at least 21 national security laws, not have draconian measures?
While acts and activities that endanger national security are ever-evolving, I disagree with the notion that the 2024 version of Article 23 legislation is harsher than the 2003 version. The correct statement would be that it is more comprehensive, aiming to fill the loopholes in safeguarding national security in the same way other countries periodically enact and update their national security laws.
Critics who claimed that it contains many ambiguities and gray areas have obviously overlooked the fact that many common law jurisdictions do not define “national security” in their national security laws. As the consultation document points out, although relevant committees in the UK Parliament considered it necessary to define security or interests in the UK that appear multiple times in the National Security Act 2023, the UK government has maintained its consistent position and rejected such suggestions.
To dispel “concerns” about “easily falling into legal traps” as well as other concerns, the HKSAR government must make every effort to explain and refute false accusations during the consultation period. Secretary for Security Chris Tang Ping-keung set a good example when asked: Could discussing the “economic and social development of the HKSAR” inadvertently become an offense of leaking “State secrets”? He emphasized that the offense depends on three elements, including “disclosure without lawful authority”, “reasonably likely to endanger national security”, and whether the disclosed information falls within the realm of State secrets. It is also necessary to consider whether there is criminal intent, stating that all these three elements must be present for it to be illegal. Simply discussing social and economic development or engaging in research does not constitute a crime.
I agree with the SAR government’s proposal to enact a new national security law when legislating according to Article 23, ensuring its compatibility and complementarity with the NSL, and creating a comprehensive and effective legal framework for safeguarding national security.
To improve the legal system and enforcement mechanisms for safeguarding national security, the HKSAR government should also improve provisions related to law enforcement powers and legal procedures, measures to deal with, combat, deter and prevent fugitive activities, as well as measures to ensure that personnel involved in national security work are not subjected to “doxxing” or harassment.
National security is synonymous with people’s security, and only with national security can there be stability at home. Every country in the world has national security laws, and there is no reason why the HKSAR, as part of China, should not legislate to address national security threats.
I hope that the HKSAR government can fulfill this historical mission, successfully complete the Article 23 legislation, address the long-standing gaps in national security protection, and ensure national political power, sovereignty, unity, territorial integrity, people’s well-being, sustainable economic development, a thriving society, and open a new chapter for Hong Kong’s progress and prosperity.
The author is a board member of Chinese Association of Hong Kong and Macao Studies.
The views do not necessarily reflect those of China Daily.
