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T
he Hong Kong government has repeatedly asserted that the majority of the city’s residents support the legislation of Article 23 of the Basic Law.
But a recent BBC News Chinese feature story on the proposed bill captured an interesting scenario. When people were asked about their opinions on the legislation, many reacted with embarrassment, opting not to answer the journalist’s question. Some even expressed concerns about potentially breaching the national security law by discussing it in public, vividly demonstrating the prevailing atmosphere in what was once a freewheeling city.
The latest national security bill has been submitted for review to the Legislative Council, which is expected to act on it with more speed than usual. This is despite the legislation having been a controversial issue for more than two decades.
According to Article 23 of the Basic Law, the city’s mini constitution, the Hong Kong government must enact laws to prohibit any act of treason, secession, sedition, subversion against the Chinese government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in Hong Kong, and to prevent political organizations or bodies of Hong Kong from establishing ties with foreign political organizations or bodies.
Given the vagueness of the terms and China’s poor human-rights record, there have been concerns that the legislation will erode human rights in Hong Kong, which have already been in decline since the 1997 sovereignty transition.
In 2003, Hong Kong authorities tried to implement Article 23 with a draft national security law after a controversial consultation process. Such attempts eventually resulted in political turmoil with half a million people protesting against the bill. After a major pro-government party retracted its support, the government finally withdrew the bill.
This marked the start of a new wave of democracy movement in Hong Kong. Numerous new civil-society groups were established, such as the now-defunct Civil Human Rights Front, which would significantly contribute to social movements for two decades. Article 23 also became political taboo, with the government unwilling to stir up controversy again.
But since the government imposed a draconian national security law in 2020, national security has been a central theme of state propaganda. Opposition politicians and activists have been imprisoned, and hundreds of civil-society groups disbanded.
Beyond the national security law, the colonial sedition law has been actively used to prosecute so-called seditious behavior. Recently, a 26-year-old man was sentenced to prison for three months just for wearing a T-shirt with the slogan “Free Hong Kong. Liberate Hong Kong; revolution of our times” printed on it, and possessing three flags with the same slogan plus another T-shirt that had “Hong Kong Independence” on it.
Today Article 23 is no longer taboo. In fact, over the past few years, the government has repeatedly reiterated the importance of its legislation. While all dissent has been silenced, Hong Kong authorities maintain that the national security threat remains significant by labeling the 2019 social movements as Hong Kong’s “color revolution” aimed at toppling the government.
And then in late January, the government finally launched a consultation on Article 23 legislation, proposing to enact a new national security law to cover treason, insurrection, theft of state secrets and espionage, sabotage endangering national security, and external interference.
Short consultation period
While Article 23 remains controversial, the consultation period was notably brief: it lasted only four weeks, including the Lunar New Year holidays. Many believed that the new legislation would further empower authorities. But many were also concerned that under the existing national security law, which already grants enormous power to the authorities to clamp down on dissident voices, public opposition to the proposed bill could lead to retaliation from those in power.
As the government mobilized its supporters to back Article 23, the threat of prosecution hung over the city, and the majority could only remain silent.
The fear was – and is – not exaggerated. When the Hong Kong Journalists Association (HKJA) voiced concerns about the potential impact Article 23 on freedom of speech and the vague definition of “state secrets” in the bill, a pro-government journalist group swiftly rebutted by criticizing the HKJA for “distorting the truth and causing unnecessary panic.” It even claimed that the HKJA was involved in “disrupting government proceedings, supporting violent riots, and obstructing police operations during social unrest,” an unfounded accusation that has been continuously used to attack the HKJA and other civil society groups.
More importantly, the consultation paper did not provide specific provisions and proposed penalties for each offense, leaving the public in the dark about the legislation’s details and its potential impact on their rights. The only thing explicit was that, like the current national security law, the new legislation will adopt China’s broad definition of national security, which – as defined by President Xi Jinping in his “holistic view of national security” – encompasses a wide range of areas, including political security, military security, nuclear security, cultural security, and artificial intelligence security.
The vague definition of national security and related offenses has been a longstanding concern for Hong Kongers. Although offenses such as treason, insurrection, or theft of state secrets might seem distant from ordinary people’s lives, the ambiguous definition of these offenses has sparked public fear of inadvertently running afoul of the law.
For example, state secrets will cover not only national defense information but also “secrets” about technological development, scientific technology, and economic and social development. Disclosure of such secrets, deemed “likely to endanger national security,” constitutes an offense. This broad and unclear definition reminds us how China has historically used accusations of theft of state secrets or espionage to target journalists and business figures.
The offense of espionage will also be extended to include the publication of “a statement of fact that is false or misleading to the public” in collusion with an “external force.” The bill proposes as well a new offense of “external interference” to criminalize local organizations and individuals with “close ties with external forces” and engage in “activities endangering national security.”
In recent years, the Hong Kong government had always rebutted criticism of all kinds by calling these “misleading” and/or “unfounded.” In 2023, after the U.N. Committee on Economic, Social and Cultural Rights released its concluding observations, Hong Kong government called the committee’s report “unfounded and misleading,” arguing that the committee’s statements were based on “certain false information and distorted narratives.”
Just last January, the city government also dismissed a U.N. experts’ statement calling for the release of pro-democracy mogul Jimmy Lai as “unfounded.” Once the new legislation is passed, would such comments or criticism now be considered evidence of “espionage”?
Sheep vs wolves
What’s more, the proposed new sedition offense will pose another threat to human rights. In the last four years, the Hong Kong government has been frequently using the colonial sedition law (Section 9(2) of the Crimes Ordinance) to suppress dissent.
In 2022, five speech therapists were sentenced to a 19-month jail term for publishing children’s books that used the story of a village of sheep fighting back against wolves to explain the democratic movement in Hong Kong.
The books were found seditious by the national security-designated judge Kwok Wai-kin, who accused the defendants of “sowing the seed of instability.”
The colonial sedition law has faced criticism for violating international human rights standards as it in effect criminalizes criticism of the government. The U.N. Human Rights Committee urged Hong Kong to repeal the law in 2022.
In fact, many countries have already abolished similar laws or limited their application in compliance with international standards.
The Hong Kong government, in contrast, proposes incorporating the provisions of the colonial-era law into the new national security bill and broadening the definition of “sedition intention” to include “the incitement of hatred against the fundamental system of the State, such state organs as provided for in the Constitution, the offices of the Central People’s Government in the HKSAR, and the constitutional order of the HKSAR.”
In layman’s terms, people found to have incited hatred against any executive, legislative, or judicial authority, or induced hatred or enmity among Hong Kong residents can be prosecuted. Moreover, the government recommends increasing the penalties for “seditious intention” and “possession of seditious publication,” a move that further threatens freedom of speech and expression.
In the consultation paper, the Hong Kong government cited national security laws in the United States, the United Kingdom, Australia, and Canada, emphasizing that many democratic countries also significantly empower law enforcement to protect national security.
What it failed to mention is that the context and the legal protection in these countries are totally different from those in Hong Kong – making it look like the kind of misleading statement the Hong Kong government often accuses others of making.
It took the government only nine days after the conclusion of the consultation period to submit the bill to the Legislative Council. Authorities expect an expedited legislative process, since it says the bill has public support. According to the government, it had received 13,147 submissions during the consultation period, of which 99 percent supported the legislation.
But many people consider what took place as nothing short of a sham consultation. And no amount of supposed public approval of the legislation will alter the fact that with it, Hong Kong’s human-rights situation will only further deteriorate. ◉