Hong Kong’s government revealed its proposed national security bill on Friday, after a month-long public consultation that concluded last week. City leaders want it passed quickly, possibly within a few weeks. The Article 23 package aims to update or introduce new laws against treason, sabotage, sedition, theft of state secrets, and espionage. It also can tighten control over foreign political entities and groups functioning in the city through clauses that define “external forces” and criminalize “external interference”. Some lawyers who reviewed the draft stated that while some of the updated terms for the charges appear to be similar to Western ones, some sections, such as those for sedition and state secrets, were broader and potentially harsher.
The measure provides punishments of up to life in prison for treason, rebellion, sabotage, and mutiny, 20 years for espionage, and 10 years for offences involving state secrets and sedition while recognizing Hong Kong’s freedom of expression and other rights. The need for certain specific regulations is succinctly stated in Article 23 of the Basic Law, a mini-constitutional instrument that has directed Hong Kong’s ties with China since its independence from British colonial authority in 1997. A previous attempt to adopt Article 23 in 2003 was thwarted after an estimated 500,000 people organized a peaceful demonstration.
Hong Kong’s leader, John Lee, has stated that the laws will satisfy international standards while protecting people’s rights and freedoms
Businesses such as international banks, hedge funds, private research organizations, and media outlets, as well as diplomats and scholars, are closely monitoring developments. Some fear that the legislation will further limit the city’s liberties, while others worry that the final regulations will have an influence on data operations and that state secrets clauses will impede research. The bill establishes a new sabotage offence of unlawfully utilizing a computer or electronic system to damage national security, which is punishable by 20 years in jail. According to some attorneys, the draft definition of state secrets looks to be rather broad, encompassing military, security, and diplomatic secrets, as well as classified social, economic, and technological information between the Chinese and Hong Kong governments and their relationship.
Some experts and diplomats are concerned that studies into China’s politics, economy, and military, as well as due diligence checks of individuals and enterprises on the Chinese mainland, which have traditionally been carried out by Hong Kong firms and academics, would inadvertently stray into state secrets. While the sorts of material covered are diverse, the statute requires that it be secret and would jeopardize national security if exposed. The measure includes public interest defences, but the threshold looks to be high: “making the disclosure manifestly outweighs the public interest served by not making the disclosure”. Hong Kong’s leader, John Lee, has stated that the laws will satisfy international standards while protecting Hong Kong’s rights and freedoms.
Several archaic, obscure, and arcane regulations from its time as a British colony remain on the books
Several archaic, obscure, and arcane regulations from its time as a British colony remain on the books. Beijing also enacted a broad national security ordinance in 2020, claiming it was necessary to restore calm to Hong Kong following months of pro-democracy rallies in 2019. That law addressed only a few offences, such as cooperation with foreign forces, while simultaneously allowing mainland national security personnel to be stationed in the city for the first time. It also included a provision that allowed suspects to be tried on the mainland, where the courts are controlled by the ruling Communist Party.
The 2020 law emphasised the need for Hong Kong to continue to work on Article 23, including the development of local legislation. Senior Hong Kong officials said it is necessary to close legislative loopholes, notably those related to “soft resistance” following the 2019 protests, as well as internet control. Security Chief Chris Tang has often stated that the government requires improved instruments to combat espionage and the actions of foreign agents in the city. Unlike the tensions that preceded the law in 2003, the final Article 23 bill is anticipated to pass relatively quickly, following formal readings and some debate in the heavily pro-Beijing Legislative Council. Following changes to Hong Kong’s electoral system in 2019, pro-establishment figures screened as “patriots” now control the body.