On March 19, 89 lawmakers unanimously passed Hong Kong’s local-version national security law after more than two decades of delay. Striking a balance between the genuine need to safeguard national security and the equally important need to address human rights concerns, the Safeguarding National Security Ordinance (the Ordinance) is a piece of valuable legislation that can stand the test of time.
The better the beginning, the better the journey. The outbreak of the “black-clad” riots and the publication of the “Fact Sheet: US Interference in Hong Kong’s Affairs and Support for Anti-China, Destabilizing Forces” by the Ministry of Foreign Affairs in September 2021 alerted Hong Kong residents to national security risks in the city. In addition to receiving strong public support for the legislation during consultation, the Hong Kong Special Administrative Region government has found comfort in the fact that critics have been far more muted than they were in 2003. The West’s ongoing smear campaigns against the Ordinance might hopefully be less damaging than those seen a few years ago when the National Security Law for Hong Kong (NSL) was promulgated.
But the journey has been far from plain sailing. The Article 23 legislation has provided an opportunity for the US and its allies to discredit Hong Kong in the hope of shifting the city’s reputation to the debit side of the ledger. US State Department Principal Deputy Spokesperson Vedant Patel alleged that the law has the “potential to accelerate the closing of a once-open society”.
Arguing from a hypocritical slippery slope, UK Foreign Secretary David Cameron claimed that the law will “damage the rights and freedoms” in Hong Kong. This was despite the fact that the UK has at least 14 pieces of national security-related legislation; and that by placing unreasonable restrictions on investigative journalism, the UK’s National Security Act 2023 has prompted a groundswell of popular dissatisfaction in the country. The Act has been criticized for its failure to define “safety or interests of the UK”. In response to the criticism, the British government stated that limiting this term by specifying certain conduct or including an explicit threshold would risk creating loopholes for hostile forces to exploit. British politicians should remember the defense put forward by their own government when they criticize some of the key terms of the Ordinance as being “broadly” defined.
According to the Law Society of Hong Kong, an appropriate balance can be struck between safeguarding national security and upholding fundamental human rights in the implementation of the legislation. Hong Kong is safeguarded by the International Covenant on Civil and Political Rights as well as the rule of law principles. These safeguards are not only enshrined in Chapter III of the Basic Law, but are also incorporated into the NSL. As Grenville Cross SC has correctly pointed out, human rights guarantees are lacking in the National Security Act of the UK (Grenville Cross, Human Rights Protections Underpin Safeguarding National Security Ordinance, in China Daily Hong Kong).
The smear campaigns against the Ordinance will not jeopardize Hong Kong’s journey toward greater stability and prosperity. Contrary to the allegation that the “draconian” provisions of the Ordinance will compound the “chilling effect” on dissenters, the Ordinance is a necessary piece of legislation buttressed by sufficient human rights safeguards
What amounts to external interference under the Ordinance has attracted a lot of attention from the critics. Far more lenient than Singapore’s laws to counteract foreign interference, external interference under the Ordinance refers to those using improper means to bring about an interference effect in collaboration with an external force. Highlighting the differences between the two versions, former Hong Kong chief executive Leung Chun-ying commented on the Philip Chan Man Ping case in Singpore. The city-state’s Ministry of Home Affairs described Chan’s activities as directed toward a political end in Singapore. Chan, a Hong Kong-born businessman, was designated “politically significant” under Singapore’s Foreign Interference Countermeasures Act.
Leung emphasized that power under the Article 23 legislation and existing internal security legislation are vested in an independent judiciary. In spite of an allegation by Canada that the Ordinance lacks any clear provisions for an independent review mechanism, our think tank would like to remind the critics of the ineluctable fact that practically all administrative decisions affecting individual rights on national security issues are reviewable in our courts. Nor can they turn a blind eye to the fact that a public interest defense has been added for offenses relating to State secrets. To give further assurance to skeptics, the government said the law will not target commercial exchanges or transactions, and will create a more stable and predictable business environment.
Penalties for offenses under the Ordinance are similar to those of six common law jurisdictions under review. For instance, treason carries a penalty of life imprisonment across many jurisdictions, including the UK, Australia, New Zealand, Canada and Singapore. In the US, those found guilty of treason can be sentenced to death. The Ordinance caps the penalty for espionage at 20 years’ imprisonment, while those found guilty of the offense in the US face the death penalty. In some cases, Hong Kong’s penalties are substantially lower than elsewhere. These lenient penalties should not be swept away by the tide of negative narratives propagated by hostile external forces.
The harsh penalties under the Internal Security Act of Singapore allow the government to detain a suspect for up to two years on grounds of national security, and such an order is not subject to judicial review save for procedural requirements. This rules out bail completely. It is worth noting that the maximum penalty for receiving or organizing military drilling involving an external force is five and 10 years respectively under the Ordinance. But anyone found guilty of providing or taking part in military-style training involving a foreign government in Australia faces 20 years’ imprisonment.
Critics have fulfilled their obligation under the smear campaign to the full by adopting double standards to condemn the stiff maximum penalties for the offense of sedition. Besides criticizing the extension of the maximum penalty to seven years, opponents argue that the offense of seditious intent is too harsh because of its low threshold. It no longer requires the element of incitement of violence to constitute a crime. Two years ago, critics began to criticize the allegedly harsh sedition law of Hong Kong. Kent Roach, a law professor at the University of Toronto, referred to a decision by the Indian Supreme Court in May 2022 to suspend the sedition law. It was held by the Supreme Court that the sedition law was not in tune with the current social milieu.
To the disappointment of Roach, the Law Commission of India (LCI) recently recommended that sedition be retained in the Indian Penal Code. The LCI’s proposed amendments also include an enhanced punishment for sedition, extending imprisonment from three years to seven years. The recommendation also creates another condition for attracting the sedition-law tendency to incite violence. This phrase is broadly defined as “mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence”. This is a very low threshold. The recommendations prompt a reflection on Roach’s double standards. One final reminder is that the sedition offense requires a high standard for prosecution in the city.
To conclude, the smear campaigns against the Ordinance will not jeopardize Hong Kong’s journey toward greater stability and prosperity. Contrary to the allegation that the “draconian” provisions of the Ordinance will compound the “chilling effect” on dissenters, the Ordinance is a necessary piece of legislation buttressed by sufficient human rights safeguards.
The author is a barrister, a part-time researcher of Shenzhen University Hong Kong and the Macao Basic Law Research Center, chairman of the Chinese Dream Think Tank, and a district councilor.
The views do not necessarily reflect those of China Daily.
