Published: 02:30, February 26, 2024 | Updated: 09:40, February 26, 2024
Proposal must strike balance between national security, civil liberties protection
By Philip Wong

Maintaining a delicate balance between the needs for national security and civil liberties protection is a challenging task, particularly under the complex situation in Hong Kong. This article discusses the need for such a balance and focuses on the case of Hong Kong’s proposed legislation according to Article 23 of the Basic Law.

Article 23 requires Hong Kong to enact local legislation on national security protection. The proposed Article 23 legislation will criminalize acts and activities endangering national security, including treason, insurrection, theft of State secrets and espionage, sabotage endangering national security, and external interference.

Supporters of a piece of comprehensive national security legislation argue that it is crucial to preserving China’s national security and maintaining stability in the Hong Kong Special Administrative Region, which is the foundation of the city’s high degree of autonomy and long-term prosperity. In Hong Kong, concerns over foreign interference and terrorism threats have heightened the urgency for such legislation.

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Critics argue that any “broad” and “vaguely” defined provisions could erode freedom of expression, assembly and association. Striking a balance requires proportionality and robust safeguards to ensure that any legislation respects fundamental rights. Save for spiteful scaremongering, the HKSAR government is obliged to ease any legitimate concerns by painstakingly explaining the proposed legislation to the public.

Recognizing the sensitivity of the issue, the government initiated a consultation process to gather public opinion on the proposed legislation. The objectives were to engage stakeholders, understand public sentiments, and ensure transparency in the legislative process.

Achieving a balance between national security and civil liberties necessitates a thoughtful approach, including the incorporation of robust safeguards for the legitimate rights and freedom of individuals in the legislation. Successful examples from other jurisdictions can serve as templates for Hong Kong, highlighting the importance of proportionality, respect for individual rights, and the rule of law.

There have been numerous examples of national security laws implemented by different countries. Here are a few examples:

The USA Patriot Improvement and Reauthorization Act of 2005 (commonly known as the Patriot Act). The Patriot Act was enacted following the terrorist attacks on Sept 11, 2001, with the stated goal of tightening US national security, particularly against foreign terrorism. The law has been controversial because of concerns about privacy and civil liberties, but it has played a role in enhancing the US’ national security capabilities.

National Security Act 2017 (Canada): Canada has implemented various national security laws to protect against national security threats. The 2017 act, among others, provides legal frameworks for intelligence gathering, sharing information, and addressing terrorism-related activities. These laws have helped enhance Canada’s national security efforts.

Counter-Terrorism and Security Act 2015 (United Kingdom): The act introduced measures to counter terrorism and enhance national security. It includes provisions for preventing radicalization, improving border security, and boosting intelligence sharing among law enforcement and intelligence agencies.

It is important to note that the effectiveness and impact of national security laws can vary, and there are ongoing debates about their scope, balance with civil liberties, and potential for abuse. Striking the right balance between security measures and protecting individual rights and freedoms is crucial for the successful implementation of such laws.

While the need for national security is undeniable, preserving civil liberties and individual rights is equally vital for a democratic society. The case of Hong Kong highlights the complexities involved in navigating this delicate balance. By incorporating robust safeguards for the legitimate rights of individuals, Hong Kong can uphold both national security and civil liberties in its unique political context with the trust of Hong Kong residents in the government.

Without a national security law, a country may face several challenges in safeguarding its national security interests. Here are some potential consequences:

Vulnerability to threats: National security laws provide legal mechanisms to identify, prevent and respond to various threats, including terrorism, espionage, cyberattacks and organized crime. Without such laws, the country may be more exposed to these risks, potentially compromising the safety of its citizens and the integrity of its institutions. 

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Weakened sovereignty: Without national security laws, a country’s sovereignty and territorial integrity cannot be efficiently safeguarded. Effective legal frameworks and mechanisms are required to identify, prevent and respond to threats that may challenge or undermine a country’s sovereignty and territorial integrity. It enables the government to take proactive measures to safeguard national borders, institutions and interests from various risks, including terrorism, espionage, cyberattacks, and organized crime.

Limited counterintelligence measures: National security laws should include provisions to strengthen counterintelligence efforts. Without these legal frameworks, the government may face limitations in gathering critical information and preventing security breaches.

Impeded law enforcement: National security laws empower law enforcement agencies with specific tools and authorities to investigate and prosecute national security offenses. Without such laws, law enforcement agencies may face challenges in effectively dealing with these offenses.

Erosion of public confidence: National security laws can contribute to maintaining public confidence in the government’s ability to protect national security. In the absence of the laws, the lack of legal frameworks may lead to uncertainty and a perception of inadequate security measures, potentially eroding public trust.

It is important to strike a balance between national security and the protection of civil liberties and rights. The implementation of national security laws should be in accordance with the rule of law, as well as principles of transparency and accountability, to ensure that they are not abused. Hong Kong people should trust their government and take the first step to enhance our national security.

The author is deputy director of the Pan Sutong Shanghai-Hong Kong Economic Policy Research Institute, Lingnan University.

The views do not necessarily reflect those of China Daily.