The outbreak of the “black-clad” riots in 2019 has served as a stern warning of what can happen in the absence of a national security law. To plug the national security loophole in the city, the Standing Committee of the National People’s Congress promulgated the National Security Law for Hong Kong (NSL) on June 30, 2020. Although the NSL was promulgated, the Hong Kong Special Administrative Region must still perform its constitutional duty to enact local legislation under Article 23 of the Basic Law. Hong Kong has recently walked out of the quagmire of procrastination by launching a one-month public consultation on Article 23 legislation.

The 110-page consultation paper has laid down guiding principles rather than details over safeguarding national security. The proposal seeks to outlaw five types of offenses, namely treason, insurrection, incitement to mutiny and disaffection; and acts with seditious intention; sabotage; foreign interference; and theft of State secrets and espionage. 

We hope the meaningful and respectful dialog between the public and the HKSAR government will enable law drafters to gather consultation responses from stakeholders about what they really want and need. The consultation paper does not spell out new penalties nor does it specify the scope of the extraterritorial application of the law. Deputy Secretary for Justice Horace Cheung Kwok-kwan said the public should not worry about the lack of penalties, because they will have time to voice their views, even after the end of the consultation. The bill will be written later and inputs from the public consultation will be incorporated into the bill. With stronger support from the local community, we hope the legislative process will be smoother this time.

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What matters primarily is the need to dispel any misunderstanding of the key terms stipulated in the Article 23 legislation. We must ensure that all offense-constituting terms are as clearly and tightly defined as appropriate. A rebuttal team has been formed to counter online attacks of the legislation. Besides, lawmakers have vowed to actively do their work in explaining the proposals to residents and the international community. InvestHK has also taken an active role in soliciting responses from overseas chambers of commerce and consulates general.

It is worthy of note that the NSL does not define the specific meaning of “State secret” clearly in its provisions. Ronny Tong Ka-wah, a member of the Executive Council, has urged authorities to clearly define “State secret” outlined in the paper

Like painting on a broad canvas, some broad offense-constituting terms should be made clearer or be well-defined. Without clear definitions, judges will inevitably be given much leeway to interpret those terms. First of all, the term “State secret” has caused concerns because of the lack of concrete definitions. The paper lists seven types of secrets that can equate to a State secret if they are disclosed without lawful authority and are likely to endanger national security. These seven secrets are: (a) secrets concerning major policy decisions on affairs of the country or HKSAR; (b) secrets concerning the construction of national defense or armed forces; (c) secrets concerning diplomatic or foreign affairs activities of the country or secrets concerning the external affairs of HKSAR, or secrets that the country or the HKSAR is under an external obligation to preserve secrecy; (d) secrets concerning the economic and social development of the country and HKSAR; (e) secrets concerning the technological or scientific technology of the country or HKSAR; (f) secrets concerning activities for safeguarding national security or the security of HKSAR or for the investigation of offenses; or (g) secrets concerning the relationship between the central authorities and HKSAR.

It is worthy of note that the NSL does not define the specific meaning of “State secret” clearly in its provisions. Ronny Tong Ka-wah, a member of the Executive Council, has urged authorities to clearly define “State secret” outlined in the paper. The proposed Article 23 legislation in 2002-03 sought to add a new category of shielded information in addition to the existing ones of security and intelligence, defense, international relations, and information related to the commission of offenses and criminal investigation. The new category would have been “information, documents or other articles that relate to any affairs concerning Hong Kong which are, under the Basic Law, within the responsibility of the central authorities”. It came as no surprise that critics quickly attacked this proposed category as “too broad” (Doreen Weisenhaus, Hong Kong Media Law (HKU Press, 2011)). This lesson should not disappear off the radar of the Security Bureau.

Thomas Kellogg, executive director of the Center for Asian Law at Georgetown University, reminds us that it is uncommon in other countries’ laws on State secrets to cover a broad range of economic and policy information. Scholars also want to conduct their research free from the perceived threat of legal ambiguity and uncertainty.

Former secretary for security Lai Tung-kwok argued that the phrase “intent” had been backed up by countless legal precedents and the burden of proof was high

Secretary for Security Chris Tang Ping-keung has said the authorities were actively considering a public interest defense clause for the Article 23 legislation. In order to safeguard freedom of expression and the free flow of information necessary for sustaining an international financial center, protection should be afforded to truly deserving categories of information and the means of protection should be clearly defined. The disclosure should not exceed the extent that is necessary for revealing the matter and the public interest served by the disclosure should not outweigh the public interest served by not making that disclosure for national security concerns. The threshold is quite high.

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Another issue of concern is the requirement of “intent” under some of the crimes, such as treason and insurrection, is vague. Ryan Mitchell, an associate professor of law at the Chinese University of Hong Kong, said there were ambiguous aspects to assessing “seditious intentions”’ (SCMP, Jan 3, 2024). Nevertheless, reference to Section 9(2) of the Crimes Ordinance helps mitigate the harshness and rigidities of a blanket approach to defining “seditions intentions”. For example, criticism of government policies in the hope of improving the system is permitted (4.8 (a) of the consultation paper).

Former secretary for security Lai Tung-kwok argued that the phrase “intent” had been backed up by countless legal precedents and the burden of proof was high. Ronny Tong said Hong Kong courts were very experienced in determining “intention” in offenses, and the methods for doing so were similar in both national security and ordinary criminal cases.

Finally, we hope Hong Kong will put a long-awaited full stop to the controversy over national security legislation with the completion of Article 23 legislation. As director of the central government’s liaison office, Zheng Yanxiong has correctly pointed out that security is a prerequisite for peace and economic prosperity. The Article 23 legislation is not just a nice-to-have but a must-have; it will serve Hong Kong better if it can be enacted as early as possible.

Jonathan Yeung is a solicitor, a PRC lawyer since 2007 and civil litigation and practice consultant of Chinese Dream Think Tank.   

Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, chairman of Chinese Dream Think Tank and a district councilor 

The views do not necessarily reflect those of China Daily.