Published: 23:52, February 22, 2024 | Updated: 09:41, February 23, 2024
Article 23 legislation conforms to international standards on national security regimes
By Eliza Chan

The Hong Kong Special Administrative Region government recently launched public consultation on the proposed Safeguarding National Security Ordinance (Article 23 legislation). The proposed ordinance represents a significant development for Hong Kong’s business community and society as a whole.

Less than five years ago, the city was in turmoil, with the whole community gripped by unremitting violence perpetrated by “black-clad” rioters. The proposed legislation shows that the HKSAR government is determined to ensure there is no repeat of those disruptive times; it will provide the law enforcement authorities with the tools they need to preempt subversive activities and maintain social stability.

The proposed legislation is also vital to maintaining a safe environment conducive to business operations, commerce, and finance activities. This is particularly important given the economic challenges Hong Kong currently faces, including the downturn in the property and stock markets.

Critics of the proposed ordinance must understand that it is the constitutional duty of the HKSAR government under Article 23 of the Basic Law, Article 3 of the “5.28 Decision” of the National People’s Congress, and Article 7 of the National Security Law for Hong Kong, to introduce the proposed ordinance and thus fulfill its legislative obligations with respect to national security.

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Meeting global legal standards

Aside from fulfilling these national security obligations, the proposed ordinance also brings Hong Kong in line with the national security regimes in the United States, the United Kingdom and other jurisdictions. For example, the US has at least 21 pieces of legislation relating to national security; the UK, 14; Australia, nine; and Singapore, six. Indeed, in comparison, it can be said that the proposed legislation, together with existing national security measures in Hong Kong, represents a more streamlined national security regime than those in other common law jurisdictions.

These other jurisdictions have, like Hong Kong, introduced new pieces of legislation to ensure that their national security regimes keep pace with emerging risks. For example, in the UK, the National Security Act 2023 introduces several new offenses to protect against the threat of espionage and sabotage by hostile actors. In Singapore, another common law jurisdiction, the Foreign Interference (Countermeasures) Act 2021 aims to protect the public interest by counteracting acts of foreign interference.

Specifically, under Article 23, the HKSAR government is obligated to address seven types of acts and activities to safeguard national sovereignty, security and development interests: treason, secession, sedition, subversion against the Central People’s Government, theft of State secrets, foreign political organizations or bodies conducting political activities in Hong Kong, and political organizations or bodies of the HKSAR establishing ties with foreign political organizations or bodies.

The features of the proposed ordinance concentrate on enhancing existing laws or introducing new offenses in the areas of treason; insurrection, incitement to mutiny, disaffection, and acts with seditious intent; theft of State secrets and espionage; sabotage endangering national security and related activities; external interference; and organizations engaging in activities that endanger national security.

Among other things, the proposed ordinance will formalize the common law offense of “misprision of treason”, wherein an individual possesses knowledge of someone having perpetrated an act of treason yet fails to divulge this information to a duly authorized entity within a reasonable time frame, which would align Hong Kong with Australia, Canada, New Zealand, Singapore and the US. Laws criminalizing the failure to report that a person is about to commit acts of treason have also been codified in these jurisdictions, where the prescribed penalties for such an offense span from seven years of imprisonment to life imprisonment.

Similarly, whereas the proposed ordinance presents new transgressions, such as the offense of “insurrection”, it additionally draws upon similarly worded offenses in Australia, Canada, and Singapore, where the maximum prescribed penalty for insurrection is life imprisonment.

The introduction of a new offense of “external interference” under the proposed ordinance also adopts concepts already in use in Western countries, such as similar offenses in the National Security Act 2023 of the UK and the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 of Australia, which carry maximum sentences of 14 years and 20 years respectively.

Aside from fulfilling these national security obligations, the proposed ordinance also brings Hong Kong in line with the national security regimes in the United States, the United Kingdom and other jurisdictions

More security for businesses in HK

The more precise and clear delineation in the proposed ordinance of what constitutes “State secrets” under the law, particularly that these secrets can encompass information pertaining to “economic and social development”, is particularly relevant to businesses in Hong Kong.

This development not only mirrors legislation in other jurisdictions, such as the UK, where the Government Security Classifications Policy incorporates leaks that are likely to harm commercial, economic and financial interests, and Canada and the US, where secrets can encompass trade, scientific or technological matters, but should also instill greater assurance in businesses operating in Hong Kong regarding the safeguarding of their information.

Indeed, there is already evidence to suggest that the security and safety afforded by a robust national security environment is an important factor in attracting international companies, including strategic enterprises, to establish offices and make investments in Hong Kong.

The international business community should also welcome the fact that the secretary for security of the HKSAR has affirmatively clarified that the proposed ordinance’s mechanism for prohibiting the operation of relevant organizations does not apply to any company registered under the Companies Ordinance (Cap.622) or under the former Companies Ordinance as defined by section 2(1) of the Companies Ordinance (Cap.622).

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It is most welcome to see that the HKSAR government is actively reaching out to the city’s businesses and other stakeholders to ensure that they have a proper understanding of the proposed ordinance. It is also important for the business community, including trade bodies and industry groups, to enthusiastically respond to the consultation paper with their feedback, views, and suggestions on the proposed ordinance.

Their input will undoubtedly help the HKSAR government and community create a safe and secure environment for investments and business activities, which shall in turn support the development of Hong Kong’s economy, its efforts to become a world-leading innovation and technology hub, and its support for national development.

The author is a member of the National Committee of the Chinese People’s Political Consultative Conference and the HKSAR’s Executive Council.

The views do not necessarily reflect those of China Daily.