Clarity still required after consultation on Hong Kong’s Article 23 concludes
- Concerns of various sectors of Hong Kong society need to be addressed and suggested improvements to legislation considered
The consultation on proposed new national security laws for Hong Kong lasted only 30 days, but generated much feedback and food for thought. There were more than 13,000 submissions, with an overwhelming majority expressing positive views about the laws, according to the Security Bureau.
There is, generally, agreement that the city has a constitutional duty to pass the legislation, under Article 23 of the Basic Law, and needs to update existing laws to meet today’s challenges.
But there were also concerns, from foreign business chambers, diplomats, lawyers and journalists among others, about the clarity of certain legal definitions, and the potential impact on freedoms protected by the Basic Law and Hong Kong’s role as an international city. Officials should carefully consider the many constructive suggestions made for improvements.
The new laws cover treason, insurrection, theft of state secrets and espionage, sabotage and external interference. They will operate alongside the national security law passed in 2020.
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One of the key responses, expressed widely, is a need for greater clarity.
The proposals set out broad principles. Detail is needed in the bill so that everyone has a clear understanding of what constitutes an offence.
This is essential, to ensure people are not inadvertently caught by the law or refrain from legitimate activities for fear of accidentally breaching it. The need for clarity is most needed for theft of state secrets, external interference and seditious intent.
The Bar Association and Law Society are among the respondents who have made specific suggestions and highlighted areas requiring clarification. Another strong message conveyed during the consultation is the need for a public interest defence for state secrets offences.
This was not mentioned in the consultation paper. It is encouraging that the government appears open to such a defence. The aim would be to provide journalists and others with reassurance they will not fall foul of the law if revealing sensitive information in the public interest.
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The threshold for using the defence is likely to be quite high, given that national security is involved. But it should be set at a level that ensures the defence is meaningful.
The consultation is over. We can expect further views to be expressed as the bill is formulated and passed.
The government should continue to listen and be willing to make adjustments to ensure the right balance is struck between protecting national security and safeguarding the city’s rights. Passing comprehensive but clear, finely balanced national security laws will, as emphasised by Xia Baolong, Beijing’s top official on Hong Kong affairs during his recent visit, help Hong Kong progress to the next stage of its development – a sensible move in the right direction.
