Fears over Hong Kong’s security law

Vagueness of provisions generates widespread concern over possible repression

Hong Kong’s government has unveiled powerful new national security provisions that raise fears on the part of local and international critics that it is designed to suppress civil liberties in a city that used to pride itself on press and civil freedoms. The measure, likely to be passed as early as next week, has received criticism from various international human rights groups.

Article 23 of the Basic Law, the mini-constitution of the semi-autonomous Chinese territory, requires Hong Kong to enact a security law at some stage. On March 13, the Bills Committee of Hong Kong’s Legislative Council (Legco) finished its initial scrutiny of the measure, which Amnesty International described as “taking repression to a new level.” The homegrown bill adds to the National Security Law which Beijing implemented in Hong Kong in mid-2020 with new offenses which are not in the Beijing-imposed ruling including insurrection, participating in, receiving advantages from, or supporting foreign intelligence organizations, computer-related threats to national security and external interference.

The government has proposed raising the maximum penalty for sedition to seven years in jail from the current two, while offenders found to have colluded with an “external force” in committing sedition may face a maximum of 10 years in prison.

“Subjects such as “state secrets” and “collusion” are left vague so as to give prosecutors and judges ample leeway to accuse or convict anybody,” a China watcher told Asia Sentinel.

Another target of Article 23 is to sever Hong Kong’s links with foreign countries because it is up to the arrested people to prove that a conversation with a member of the Western diplomatic corps does not constitute intention of “collusion” with anti-China forces, said the China watcher, who declined to be named. Possibly, Hong Kong-based political groups and nongovernmental organizations (NGOs) might be barred from liaising with foreign governments or NGOs, the China watcher predicted.

In an article for the Jamestown Foundation, a US think tank, on March 1, Eric Lai said that broad, vague definitions of national security in Article 23 would create challenges for Hong Kong’s common law system and likely contribute to the erosion of judicial independence. Proposed offenses such as “theft of state secrets” and “espionage” are ambiguously defined, creating uncertainty, said Lai, a research fellow at the Law Center of Georgetown University in Washington DC. “This may cause issues for foreign businesses collecting information for due diligence and will further chill freedom of expression in the city.”

Also, said the unnamed China watcher, “there is the issue of espionage. Multinationals have already warned their Hong Kong-based employees to scrub clean their handphones and computers. Foreigners (including ethnic Chinese with foreign passports) are liable to be held as spies.” More multinationals and professional firms will leave Hong Kong, he forecast, saying “Some have already cut down staff,”

Presently, most US businesses in Hong Kong give a vote of confidence. According to a report of the American Chamber of Commerce in Hong Kong in January 2024, polls found that 68 percent of respondents said the government was responsive or very responsive to the concerns of US businesses in 2024, more than the percentage of 66 percent in 2023. The chamber’s survey found 79 percent of its members were very confident or confident or moderately confident of Hong Kong’s rule of law in 2024, up from 73 percent in 2023.

Stephen Roach, a former Asia head of Morgan Stanley, a major US bank, tweeted on March 9. “Very swift enactment of Article 23 underscores the concerns I raised in my “Hong Kong is Over” op-ed in the FT. HK has lost political autonomy.” That was a follow-on by Roach, a senior fellow of the Paul Tsai China Center at Yale Law School, to an opinion column in the Financial Times, headlined, “It pains me to say Hong Kong is over.”

That drew a tweeted retort from Regina Ip, the head of the non-official members of the Executive Council, Hong Kong’s cabinet, on March 11 that “We have a duty to safeguard national security. How can fulfilling our constitutional duty be equated as loss of ‘political autonomy’? A ridiculous comment by Stephen Roach,”

Ip, as former security secretary of Hong Kong, unsuccessfully tried to push Article 23 in 2003. She resigned from that post on July 25, 2003, after half a million people marched in protest on July 1, 2003.

In 2003, the local legal profession set up an Article 23 concern group which scrutinized Ip’s proposed Article 23, while the Democratic Party of Hong Kong raised objections to Article 23.

“In 2003, in the Legco there were still some voices representing the people, like the Democratic Party and Civic Party. There is now no democratic voice in Legco. This is a very big difference,” a source told Asia Sentinel.

“After (terrorist attacks on) September 11 (2001), the US took 1 month and a half to enact the Patriot Act. Hong Kong waited more than 26 years to enact a national security law,” Ip tweeted on March 11.

“The security laws in Western democracies were differently legislated and their implementation has checks and balances. Western democracies have a free media which provides a check on the government,” the source argued.

“In the US and UK, the legislature is popularly elected. This is not the case in Hong Kong. This is a very big difference,” the source pointed out.

The point is not that Hong Kong has a security law, as countries like the US do, but the context in which security is being applied by Beijing, an analyst told Asia Sentinel. The argument that countries like the US have security laws ignores the extensive safeguards that exist around national security laws abroad, such as narrower definitions of national security and official secrets as well as the scrutiny of a free press, civil society, and liberally minded institutions, the analyst added.

Arrest for old copies of Apple Daily?

“There is also the concern, as the Jimmy Lai case shows, that the law will be used not within the context of what happened, but rather in support of a political narrative,” said the analyst.

Lai, former publisher of the defunct Apple Daily, is on trial for violating the National Security Law, accused of colluding with foreign forces, including meeting US officials. In June 2021, Hong Kong police raided the anti-Beijing newspaper’s offices and arrested its chief editor Ryan Law as well as other executives. Days later, the newspaper closed down.

A new element ­introduced by Article 23 is that ­anyone possessing a publication that has seditious intention can also be found guilty of committing an offense that may lead to a maximum of three years imprisonment.

A Hong Kong legislator asked, if you have a copy of Apple Daily at home (deemed a seditionist newspaper), can you be held accountable under Article 23 for having the intention to spread hatred of the government or arouse dissent in Hong Kong?

“There is no satisfactory answer, and the judges can make the definitions,” said the China watcher.

In a statement on March 12, the Hong Kong government condemned a report in the Times which carried the headline, “Hongkongers to be jailed for keeping old newspapers”.

The Hong Kong government said the article in the British newspaper was “extremely misleading” and its headline was “completely wrong”. The Hong Kong government explained that a person commits an offense under Article 23 only when he or she possesses a publication that has a seditious intention “without a reasonable excuse”. Whether a publication has a seditious intention will be determined by taking into account the context and purpose of the publication, the Hong Kong government elaborated. The prosecution must prove that the defendant possesses a seditious publication “without reasonable excuse” before the defendant can be convicted, the Hong Kong government added.

The source said the ripple effect of fear of Article 23 will spread far and wide in Hong Kong, as has happened with the National Security Law.

In May 2023, Ming Pao, a Hong Kong Chinese-language newspaper, said it would no longer publish the cartoons of a prominent political cartoonist, Wong Kei-kwan, popularly known as Zunzi, after carrying his cartoons for 40 years.

“There is nothing in black and white that the cartoons violated the National Security Law,” the source pointed out.