A man checks his phone at the waterfront, with a tourist junk boat in the backdrop, on a foggy day in Hong Kong, China, on March 6.Tyrone Siu/Reuters
In 2003, when the Hong Kong government tried to pass a national security law known as Article 23, it was denounced as an attempt to undermine the Chinese territory’s hard-won democratic freedoms and human-rights protections. Hundreds of thousands took to the streets to protest the proposal, which quickly lost political support and eventually led to the resignation of not only the minister responsible for it but the city’s leader as well.
Article 23 was shelved. For two decades, successive administrations referenced it as a vague priority but never took it up with any vigour. Until now.
On Friday morning, after an unusually short public consultation period, the Hong Kong government gazetted a new version of the bill. Within hours, it had cleared its first and second readings in the city’s “patriots-only” legislature and is on track to become law by early next month.
The 212-page bill creates a multitude of new offences under the Safeguarding National Security Ordinance, including treason, insurrection, acts with seditious intent and the unlawful sharing of state secrets.
It promises human rights will be “respected and protected.” However, the bill notes that where there is a conflict, existing laws and regulations should be read in a way that gives “best regard to the object and purposes of this ordinance.”
The proposed law has been widely denounced by human-rights groups and Western governments, and news organizations, lawyers and business chambers have all raised concerns, much as they did in 2003.
Amnesty International China director Sarah Brooks said the law represents an escalation of repression in Hong Kong.
“The rapid progression of legislation under Article 23 shows the government’s eagerness to further dismantle human-rights protection and turn its back on its international obligations,” she said. “This legislation imports mainland Chinese legal concepts of ‘national security’ and ‘state secrets’ directly into Hong Kong law in a way that is deeply disturbing for the city’s future. We have long documented how such laws have been used in mainland China to violate the rights to freedom of expression, association and peaceful assembly.”
But the Hong Kong of 2024 is very different: the pro-democracy movement has been wiped out, civil society reined in and the legislature stripped of any opposition politicians. The bill’s passage is inevitable.
The transformation came via another national security law, imposed on the city by Beijing in 2020, after mass protests the year before. That legislation banned secession, subversion and collusion with foreign forces and gave prosecutors and police broad new powers. Even so, the Hong Kong government said the 2020 law left loopholes that needed closing, including cracking down on so-called “soft resistance” and updating a colonial-era sedition law.
Speaking in the legislature Friday, security chief Chris Tang said there was “real necessity and urgency” to the new bill.
“Today’s geopolitics have become increasingly complex and volatile, and national security risks are ever-present,” he said. “The government must plug the gaps in national security and complete this legislation as soon as possible.”
He pointed to the government’s responsibility, under Article 23 of the city’s constitution, to pass national security legislation. That clause, which is also used to refer to the 2003 and 2024 bills, has been unfulfilled since Hong Kong’s handover to China in 1997.
The maximum sentence for a number of offences, including treason, is life in prison, while sedition charges can result in up to seven years behind bars, including three years for the “possession of documents or articles” the distribution of which would be seditious.
It is unclear how this will apply to publications that predate the law’s coming into force, such as copies of the now-shuttered Apple Daily newspaper. In a case against publisher Jimmy Lai, prosecutors argued that some of its articles were seditious under the previous, colonial-era law.
Acts with seditious intent include causing someone to have “hatred, contempt or disaffection” for the Hong Kong and Chinese governments; fostering “hatred or enmity” among different residents of Hong Kong; and inciting “any other person to do an act that does not comply with the law” of Hong Kong. The bill specifically states that proof of intention to incite public disorder or violence is not required.
Like the national security law imposed by Beijing, parts of the new bill are extraterritorial, meaning officials can pursue charges against Hong Kongers overseas or simply “anyone” in the case of acts related to “computers or electronic systems” that endanger national security.
Committing any crime under the law in collusion with an “external force” – which the bill defines as a foreign government, political party, international organization or “any other organization in an external place that pursues political ends” – can result in an additional three years in prison.
One of the biggest concerns raised during the consultation period involved draft language on “state secrets.” In the past, China has used a similar law to prosecute journalists and due-diligence researchers, and last month Beijing moved to expand penalties for sharing lower-level “work secrets” that could “cause certain adverse effects if leaked.”
Hong Kong officials said the state secrets clause was the one most often raised in briefings on the proposed law with foreign diplomats. The bill gazetted Friday includes a public interest defence whereby the benefits of making a disclosure are deemed to “manifestly outweigh” not doing so.
However, this defence has a high bar and does not appear to apply to the acquisition or sharing of state secrets with the “intent to endanger national security; or being reckless as to whether national security would be endangered.” In the past, China has said disclosing government directives to journalists is tantamount to endangering national security.
Western governments have been highly critical of the proposed law. Britain has urged Hong Kong to “reconsider their proposals and engage in genuine and meaningful consultation with the people of Hong Kong,” while the European Union said it was worried that offences under the law “will equal the scope and the draconian measures of the National Security Law, or even go beyond those and further weaken Hong Kong’s remaining freedoms.” U.S. Consul-General Gregory May said the law was “the last thing Hong Kong needs.”
Global Affairs Canada and the consulate in Hong Kong did not immediately respond to a request for comment.