Hong Kong and Article 23: Erosion of Civil Liberties

Introduction

The Hong Kong Legislative Council unanimously passed a new national security law under the name of The Safeguarding National Security Law on March 19, 2024. The newly passed legislation, also referred as Article 23 of the Basic Law of Hong Kong confers the government with the duty to pass local laws to “prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.” The previous National Security Law of 2020 did not cover theft of state secrets which has been covered under the new statute and poses a duty on the Hong Kong government to criminalize it through local legislation.

The piece will delve into the legislative response following the widespread protests of 2019 and the functioning of such statutes which muzzle the voices of dissent. It will analyze the method by which the legislation was enacted and contend that the new statute significantly amplifies governmental authority to suppress dissent and increasingly restricts the freedom of the people due to the use of vague terms.

National Security Law, 2020: Legislative Response to the 2019 Protests

In 1997, Hong Kong was transferred to China on the condition of “one country, two systems” model wherein the rights and freedom of the people were ensured under Hong Kong and international law. However, the next two decades witnessed repression at the hands of the government. This reached the precipice of anger in 2019 as people of Hong Kong took to streets against the Extradition Bill which allowed extradition to mainland China. The record breaking number of people who were protesting shook the country to which the police responded in a brutal fashion using batons, tear gas, water cannons and other such means. With the passage of time, the protest altogether took a new form as it morphed into a pro-democracy protest emphasizing on “five demands” and withdrawal of the bill was only one of them.

This ultimately forced the government to withdraw the Extradition Bill. However, the other key demands- to retract the characterization of the protests as "riots," institute political reforms to guarantee universal suffrage, conduct independent and impartial investigations into police use of force, and unconditionally release those arrested during the protests- remained unaddressed.

In response to the protests, the mainland government passed the draconian National Security Law in 2020 which criminalized secession, subversion, terrorist activities and collusion with a foreign country or with external elements that endanger national security. The 66-articles law stipulates penalties for the crimes committed and in the most serious cases, the guilty could be awarded life imprisonment. What was introduced to maintain stability in Hong Kong turned out to be an autonomy-weakening-instrument as it threatened basic civil and political rights of people and induced devastating consequences for human rights! Numerous pro-democracy news outlets, including Apple Daily, were shut down and figures such as Jimmy Lai and Joshua Wong were arrested and tried under the vicious law. UK Foreign Secretary David Cameron termed it as “a clear breach” of the agreement struck between the UK and China regarding Hong Kong’s handover.

Amplifying China's authoritarian grip on Hong Kong, a more vigorous and stringent bill was introduced on March 8, 2024, which was passed in the 90-seat Council at a lightning speed.

What’s new?

The new legislation adopts the definition of ‘national security’ from mainland China which encompasses an inherently vague phrase “major interests of the state” that virtually extends to everything, thus, increasing state power to restrict the movement of the citizens.

On similar lines, the definition of ‘state secrets’ is adopted from mainland China which again, due to its ambiguous nature, could take anything within its ambit and the Chief Executive has the authority to certify any alleged content to be a state secret. The interpretation section (Article 28) lists down the categories which fall under the ambit of state secrets and as stated earlier, the section is extremely broad and grants an authoritative power to the Hong Kong’s leader to leverage the given section to subjugate the dissenters.

A nation is obligated to protect its public interests and this has been recognized by the United Nations Human Rights Committee (UNHRC). However, the said legitimate concerns go overboard with the measures to prevent them and do not strike a balance.

Article 29 of the legislation has incorporated the “specific disclosure” defense which allows for revealing of information to the public for their interests, however, it is jumping the gun to assume that the administration is considerate as the legislation later fleshes an extremely high threshold which poses an onus on the defendant themself to prove their innocence. At this juncture, it is necessary to recall the Tshwane Principles, also known as the Global Principles on National Security and the Right to Information, which emphasize that the responsibility of justifying any limitations on information should rest with the public entity aiming to keep it confidential. Furthermore, in meeting this obligation, the entity must furnish precise and substantial rationales to justify its decisions.

At times when questions are being raised on sedition law around the world, the legislation bolsters the scope of sedition and expressly states that the intent to incite to violence is not necessary to convict a person of the offence of sedition, which translates that any criticism of the government could result in sedition. In this long list of restrictive measures, the government introduces a horrifying provision that obligates the Chinese (a large number of Hong Kongers) to inform the police if they come to know of a person committing treason, and this adds to the existing atmosphere of fear in Hong Kong.

According to the new legislation, the Chief Executive holds the authority to autonomously enact subordinate laws at any time under the pretext of "protecting national security." In theory, these subordinate laws should align with the provisions outlined in Article 23, however, as known, the ambiguous and expansive language of the legislation leaves ample room for arbitrary lawmaking and leaves little room for negotiation for civil liberties.

Conclusion

The absence of any limitations or specificities in application of the new legislation offers a blank canvas for authorities to suppress dissenting voices raised against the authoritarian regime. By granting such extensive discretion to the authorities, the provisions effectively muzzle any form of opposition or criticism directed at the regime. This wide latitude afforded to the authorities severely restricts the ability of individuals to express dissenting opinions or engage in activism, undermining the principles of free speech and democratic governance which goes against the spirit of the 1997 Agreement. Consequently, the legislation poses a significant threat to civil liberties and reinforces the authoritarian grip on power, stifling dissent and perpetuating a climate of fear and censorship. Now, only time will tell how events will unfold in the future!