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Cliff Buddle

The requirement that Hong Kong pass its own national security laws has cast a shadow over the city ever since it returned to China in 1997.
An attempt to enact the legislation, required by Article 23 of the Basic Law, was shelved indefinitely in 2003 after a protest by 500,000 people, amid concerns about its impact on rights and freedoms.
Seventeen years later, Beijing imposed a sweeping national security law on the city, in response to months of anti-government protests and civil unrest.
That law has transformed Hong Kong. But the obligation to pass national security legislation in specific areas remains. Finally, the day has dawned.
UK, US security laws referenced for Hong Kong’s Article 23 are ‘overbroad’
Last week, the government released a 110-page consultation paper. It covers treason, insurrection, seditious intention, theft of state secrets, sabotage and external interference. The proposals go beyond those of 2003.
The laws are said by the government to be urgently needed to guard against foreign threats and internal disorder. But they have the potential to restrict the scope for free expression and inhibit Hong Kong’s efforts to promote itself as a vibrant international city.
Consultation papers take many forms. The best are expressed in neutral terms, inviting opinions and offering alternatives. The document issued last week is different. It reads more like a position paper.
It is strewn with the tired rhetoric routinely trotted out by officials. Everything from “black-clad violence” to “colour revolution”, “barbaric” interference and “smearing allegations” is there. This distracts from the proposals themselves.
The 30-day time period, which takes in the Lunar New Year holiday, is far too short, given the significance and complexity of the legislation. It should be extended.
Numerous references are made in the paper to national security laws overseas. Britain’s National Security Act, passed last year, has clearly been an inspiration. British officials might reflect on that when criticising the city’s proposals.
But comparisons with laws elsewhere cannot be taken too far. The context is different and there may be safeguards overseas that do not exist in Hong Kong.
The city’s consultation paper says new state secrets laws must be clearly defined. But the proposals are breathtakingly broad. The areas covered include major policy decisions, economic, social and technological development, and the relationship between Hong Kong and Beijing. It is difficult to imagine anything that does not fall within these cavernous categories.
Material will only be considered a state secret if its disclosure “would likely endanger national security”. Offenders must know or have reasonable grounds for believing the information concerned is a state secret. But these terms are open to wide interpretations.
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The definition must be crystal clear. Otherwise the new law will have a chilling effect on journalists, academics and business analysts, among others.
A public interest defence would help ease concerns. It is good to see the government is open to this. Why is it not mentioned in the consultation paper? Such a defence was belatedly added to the 2003 proposals in a last-ditch bid to win over the public.
The proposals for an external interference law are also expressed in broad terms and have the potential to deter Hong Kong people from engaging with their counterparts overseas.
Senior officials have offered reassurance that the law on state secrets will only apply if certain conditions are met and the crime of external interference will not cover ordinary exchanges with overseas organisations. Ultimately, the impact of the legislation will depend on the wording of the law.
The consultation is, therefore, very important. In 2003, the proposals were reviewed three times, with 51 amendments. The government should be in listening mode.
This time, given Hong Kong’s changed political environment, there are unlikely to be protests. But lessons from the past should be learned. Hong Kong people must be given adequate time, space and confidence to freely express their views on the proposals.
Only by passing laws which are clearly defined and narrow in scope, with effective safeguards to protect human rights, will Hong Kong finally bring this long-running controversy to an end.


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Hong Kong politics

The government should listen to the people on national security laws

The Chinese (R) and Hong Kong (L) flags are seen hoisted at the end of a flag-raising ceremony to mark the 23rd anniversary of Hong Kong’s handover from Britain in Hong Kong on July 1, 2020. Photo: AFP

Legal experts raise concerns over ‘vague’ intent conditions in Hong Kong’s domestic national security law, but others assure burden of proof will be high

The national and city flags are displayed in Tsim Sha Tsui. The government has issued a 110-page consultation paper on legislation required under Article 23 of the Basic Law. Photo: Yik Yeung-man

TV screens broadcast the press conference on the legislation of Article 23 of the Basic Law. Photo: Jelly Tse

Chief Executive John Lee (right) leaves the media event announcing the public consultation of the Article 23 legislation. Photo: Robert Ng

Hong Kong Bar Association head backs public interest defence for Article 23 domestic national security law

The Legislative Council building at Tamar. Theft of state secrets is among the offences authorities have proposed as part of a new ordinance required under Article 23. Photo: May Tse

Bar Association’s chairman Victor Dawes says that in some cases, matters of public interest and threats to national security may coexist to varying degrees. Photo: Elson Li

‘Avoid these negative examples’: legal experts say overseas national security laws referenced for Hong Kong’s Article 23 are ‘overbroad’

The Palace of Westminster in London. Hong Kong authorities referenced the UK’s National Security Act in a consultation paper for the coming Article 23 legislation. Photo: EPA-EFE

Chief Executive John Lee (right) leaves a press briefing on the public consultation for the coming Article 23 legislation on January 30. Photo: Robert Ng

Ryan Mitchell, an associate professor of law at Chinese University, says the UK’s Computer Misuse Act was “justly criticised as ambiguous”. Photo: YouTube/ CUHK Law 

The Merlion statue near the Marina Bay Waterfront Promenade in Singapore. The city state’s pre-independence Internal Security Act was cited in the consultation paper. Photo: AFP 

Opinion

Hongkongers must be given adequate time and confidence to freely express their views on the legislation. Thirty days is far too short


Hongkongers must be given adequate time and confidence to freely express their views on the legislation. Thirty days is far too short.


My Take

Hong Kong national security law (NSL)

Hong Kong’s Article 23 national security law

Expresses the views, ideas and conclusions of the author. (Eg. Enough of Crazy Rich Asians, think of crazy poor Hongkongers.)


Column

The government should listen to the people on national security laws

.css-1mniedq{color:inherit;font-weight:inherit;font-size:inherit;font-family:inherit;line-height:inherit;}Hongkongers must be given adequate time and confidence to freely express their views on the legislation. Thirty days is far too short

Hongkongers must be given adequate time and confidence to freely express their views on the legislation. Thirty days is far too short