Another Article 23 national security law fiasco would shatter Hong Kong government’s credibility

The government has already made a better start than in 2003 with its detailed public consultation document and promise to adhere to common law principles and protect fundamental rights
Continuing efforts to clarify issues and reassure Hongkongers will be vital for success

Regina Ip

Published: 9:30am, 4 Feb 2024

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Like many other countries, China has a national security law. It has the power to extend it to Hong Kong by adding it to Annex III of the Basic Law, a law enacted by the National People’s Congress in 1990 setting out the arrangements for the “one country, two systems” formula under which Hong Kong is governed.

Yet, in view of the separate legal and judicial systems applied in Hong Kong, Beijing agreed that Hong Kong can have its own national security law and imposed a duty on the special administrative region to do so. This constitutional duty is laid out in Article 23 of the Basic Law, which requires Hong Kong to “enact laws on its own” to prohibit seven national security offences.

An inchoate attempt to fulfil this constitutional duty failed in 2003. Since then, national security legislation to implement Article 23 has been much maligned, misrepresented and feared. After dithering for over 21 years, the government made a heroic comeback on Tuesday and unveiled a consultation document much lengthier and more comprehensive than the 2002 version.

Should people be worried? Not unless one is predisposed to distrust and fear anything to do with China.

In the past 20 years, the advance of technology and geopolitical competition has compelled many countries to update and enact new national security laws to counter new threats. What Hong Kong is doing is no different from what many other common-law jurisdictions have done.

Chinese characters reading “Hong Kong” are seen atop a building in the city on January 30. Hong Kong’s constitutional duty to enact national security legislation that befits the times is more urgent than ever. Photo: Bloomberg

For example, mounting concern in Britain about hostile state threats led to the enactment of the National Security Act in July 2023. The new law updates legislation on the protection of official secrets and espionage, and introduced new offences of sabotage and foreign interference.

The UK is not the only nation introducing new legislation to address new and evolving threats. In recent years, Australia and Singapore have also enacted new legislation to counter foreign influence and interference, “hostile information campaigns” and “online falsehoods and manipulation”.

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In 2003, Hong Kong’s national security bill was launched against a background of relative calm, despite much discontent with the sharp economic downturn and apparent mishandling of the severe acute respiratory syndrome crisis. National security threats had yet to rear their ugly head. It was inconceivable that Hong Kong could be the target of a hostile state threat or secessionist or subversive activity.

The prolonged and violent disturbances of 2019 changed all that. Hong Kong was no longer invulnerable. Scenes of black-clad protesters blocking roads, hurling molotov cocktails at the police, storming the Legislative Council, vandalising the central government’s liaison office and occupying university campuses shattered many Hong Kong people’s sense of invulnerability.

For ordinary people, threats to personal safety and physical property became real, while the government struggled to keep order. The seat of government could well have been stormed – I believe the rioters were held back only by a subliminal fear that the People’s Liberation Army would be unleashed.

07:30

China’s Rebel City: The Hong Kong Protests

To quell the unrest, Beijing enacted a national security law for Hong Kong at breakneck speed, sidestepping the snarled Hong Kong legislative process at that time. The national security law enacted by the National People’s Congress Standing Committee on June 30, 2020 immediately scotched the protests and restored stability and order. But that did not erase Hong Kong’s constitutional responsibility to enact local legislation to safeguard national security, as required by Article 23 of the Basic Law.

Twenty-one years after the first attempt, and more than halfway into the promise of no change to Hong Kong’s way of life for 50 years, as stated in the Basic Law, Hong Kong cannot afford another failure to pull off this long-outstanding constitutional and political mission. Another debacle would shatter the local government’s credibility.

This time, however, it seems the government is much better prepared. The consultation document stresses not just Hong Kong’s constitutional duty, but also the common law principles underpinning Hong Kong’s criminal justice system, and the government’s adherence to the fundamental rights and freedoms enshrined in the Basic Law and the international human rights treaties that apply to Hong Kong. It is a laudable attempt to reassure doubters with honourable words.

From the left, Secretary for Justice Paul Lam Ting-kwok, Chief Executive John Lee Ka-chiu and Secretary for Security Chris Tang Ping-keung attend a press conference on the public consultation of the Article 23 legislation, in Hong Kong on January 30. Photo: Sam Tsang

The consultation document also points out upfront that many jurisdictions, including the US, UK, Canada, Australia and Singapore, all have comprehensive legislation to safeguard national security. A list of such statutes is annexed to the consultation document for public information.

As expected, the document did not include the offences of secession and subversion. The legislative loopholes in respect of these two offences have been mended by Beijing’s national security law enacted in 2020, and there is no need for Hong Kong to reinvent the wheel.

How Hong Kong plans to amend laws, create new offences for Article 23 legislation

While proposing the legal changes to update the offences covered and strengthen enforcement measures, the government stops short of introducing a foreign influence registration scheme or similar arrangements, as the UK has done. An integrated concept of national security is adopted, but the government has also exercised restraint and balance.

In view of the complexity and sensitivity of issues relating to national security, many concerns will be raised, and much explanation will be needed in the coming months. The government must avoid previous blunders, and keep both content and presentation precise and reassuring to ensure success.

Regina Ip Lau Suk-yee is convenor of the Executive Council, a lawmaker and chairwoman of the New People’s Party