"A long-awaited, necessary step in plugging national security loopholes, complementary with the NSL for HK". Download consultation paper.
Nicola and Gabriele Iuvinale
Hong Kong officially launched the public consultation process regarding the Article 23 legislation on Tuesday, which is considered a necessary step to enhance national security law's enforcement and effectively prevent activities that compromise national security.
Most of the changes involve refining existing legislation, and there will also be additions of new offenses as needed to align with the specific circumstances in Hong Kong, local officials told a press conference on Tuesday.
The newly added items include prohibitions on certain activities endangering national security through computer or electronic systems and prohibitions on foreign interference including collaborating with foreign forces to interfere with national or regional affairs by improper means covering elections, legislation, and judicial decisions.
The Article 23 legislation is a constitutional responsibility for Hong Kong. "Following social upheaval of the Hong Kong version of the color revolution in 2019, everyone understands that national security risks can arise suddenly and be severe in nature," the Hong Kong Special Administrative Region (HKSAR) Chief Executive John Lee said on Tuesday.
Therefore, we must quickly address the deficiencies, and the HKSAR government has a responsibility to improve the shortcomings and deficiencies in the line with the decision made by the National People's Congress, China's top legislature, on May 28, 2020, Lee said.
Top lawmakers adopted the decision on May 28, 2020 on establishing and improving the legal system and enforcement mechanisms for the HKSAR to safeguard national security.
The public consultation process regarding the Article 23 will last until February 28. The HKSAR government will organize multiple explanatory sessions, including those for foreign consulates and chambers of commerce, Lee told reporters.
The legislative principles of Article 23 include adhering to the One Country, Two Systems principle, respecting and safeguarding human rights, protecting rights and freedom under the law, and legislating in accordance with the principles of the rule of law.
Regarding the legislative approach, Lee stated that a new Safeguarding National Security Ordinance would be formulated. This legislation takes into consideration the actual situation in Hong Kong and the broader international context.
It's common practice for countries to have various legislations to ensure the national security, Lee told reporters. For example, the US has at least 21 laws related to safeguarding national security, the UK has at least 14, while Canada has at least nine.
There is already a wide range of foreign legal provisions and experiences available for reference, which are included in the current consultation document, Lee said, noting that he hopes to complete the legislation as soon as possible, putting an end to the issue that has been lingering in Hong Kong for 26 years.
This will allow Hong Kong to focus on economic development and growth at the earliest opportunity, he said.
Elizabeth Quat, a member of the Legislative Council of the HKSAR, told the Global Times on Tuesday that she hopes that the Article 23 legislation will be finalized before this year's summer recess.
Secretary for Justice Paul Lam told reporters that the enactment of laws to safeguard national security is an inherent right of sovereign nations and an international practice. "Every country periodically assesses the situation and revises its laws to address potential national security risks," he said.
The fundamental purpose of Article 23 legislation of the Basic Law is to fully implement the NPC's decision and the National Security Law (NSL) for Hong Kong, ensuring the applicability of Hong Kong's legal system.
To achieve this goal, legislation must prohibit acts and activities that endanger national security, closely align with and be compatible with the NSL for Hong Kong and provide mechanisms for effective implementation and enforcement of the NSL for Hong Kong.
Following the enactment of Article 23 legislation, the basic rights and freedom of citizens will be better protected, and therefore, it is essential to ensure that the legislation aligns with international standards for safeguarding human rights, Lam said.
However, exercising freedom should not violate the principle that "Hong Kong is an inseparable part of China," therefore, safeguarding national security and respecting human rights are in alignment, he noted.
The official also stressed that Article 23 legislation aims to protect the safety and property of citizens, and legislation will clearly define the elements of offenses, exceptional circumstances, and defenses.
In terms of the newly added items, Secretary for Security Tang Ping-keung said local authorities are proposing the addition of a category of offenses that involve severe actions aimed at damaging or weakening public infrastructure or engaging in acts that endanger national security through computer or electronic systems without appropriate authorization.
These actions must be prohibited, and it is suggested to introduce new offenses based on existing crimes, such as damaging or destroying others' property and dishonestly using computers, Tang said.
To address foreign interference, the proposed updates prohibit anyone from collaborating with foreign forces to interfere with national or HKSAR affairs, including Hong Kong local elections, legislation, and judicial decisions, as well as actions that harm the relationship between the central government or HKSAR and foreign countries.
Enhancing existing regulations for social organizations, prohibiting political groups and political organizations from having any affiliations with those in foreign countries or in the island of Taiwan are also part of the proposed changes.
When it comes to offenses related to rebellion, incitement of rebellion, and secession, as well as acts with incitement intent, the legislation includes the adjustment to the scope of public officials covered by the incitement to secession offense and introducing a sedition offense to address riotous behavior that endangers national sovereignty, unity, or territorial integrity.
Concerning the theft of state secrets and espionage activities, the proposed changes seek to enact new regulations that provide a detailed definition of state secrets and to enhance existing official secrets regulations to cover modern espionage activities. These activities may involve foreign forces instigating domestic agents to disseminate false or misleading information and interfering in the affairs of the HKSAR.
Hong Kong is now facing national security risks posed by Western countries, including the CIA and British intelligence, which have openly stated that they will undertake extensive efforts directed at the Chinese mainland and the HKSAR, Lee said, noting that foreign agents and advocates of "Hong Kong independence" are still lurking.
Therefore, in the context of complex geopolitics and increased risks, it is imperative to expedite the work in safeguarding national security in this regard, he added.