Article 23: How Hong Kong’s new draconian security law will hurt people, businesses

Hong Kong, at last, has passed a new security law, commonly referred to as Article 23, that gives officials more power to curb dissent, 21 years after mass protests forced the government to backtrack on a plan to introduce such laws.

The new legislation will come into effect on Saturday (23 March) after Hong Kong’s 90-seat legislature passed it just 11 days after it was tabled, despite concerns from Western governments that freedoms would be further undermined in the financial hub.

In fact, the United States, the United Kingdom and the United Nations have expressed their concern over the law, which they claim could erode fundamental freedoms in the China-ruled city.

But what is Article 23? What’s in the law? And why is it concerning?

What is Article 23?

The new legislation, known as Article 23, refers to the section of Hong Kong’s mini constitution that requires the city to make its own law to protect national security. It was in January that Hong Kong’s Chief Executive John Lee announced a proposal to fulfil that obligation with a new law called the Safeguarding National Security Ordinance.

When asked why Hong Kong needed such legislation now, Lee had cited increasingly complex geopolitics and rising threats of spying as reasons for the legislation. At a press conference, Lee had even said the city can’t afford to delay: “For 26 years we have been waiting,” he said, referring to the number of years since Hong Kong’s 1997 handover.

Interestingly, this is Hong Kong’s second national security law. The first was imposed by Beijing in 2020, which triggered massive anti-government protests. The law was then used to prosecute activists, including media tycoon Jimmy Lai and student leaders like Joshua Wong and Lester Shum. Civil society groups were pressured into disbanding while a large number of professionals and families emigrated to Britain, Canada, Taiwan, Australia and the United States, among other places.

What’s in the new law?

The new law expands the government’s power and helps in stamping out dissent. Article 23 basically focuses on five types of crimes: treason, insurrection, sabotage that endangers national security, external interference in Hong Kong’s affairs, and espionage and theft of state secrets.

Sedition in Hong Kong now carries a jail term of up to seven years and can be applied very broadly. According to the law, if seditious acts are carried out in collusion with an “external force”, which could include foreign governments, a foreign political party, an international organisation or a company linked to a foreign government, the penalty rises to 10 years. The offence also carries a three-year jail term for possession of a publication with seditious intention, although the bill does not give specific examples of what such material might be.

The law also empowers officials to enter any premises, including with reasonable force, to remove or destroy seditious publications. Furthermore, prosecutors no longer need to prove the intention to incite public disorder or violence.

Article 23 has also widened the ambit of a state secret, but is not clearly defined. This raises fears that legitimate activities like journalism, corporate research and investor due diligence could result in prosecution. The law prohibits the unlawful “acquisition, possession, and disclosure” of state secrets” touching on a wide range of subjects — from policy decisions and national defence, to economic and technological development to diplomacy and relations between the Hong Kong and Beijing governments. And for divulging state secrets, the punishment is five years in jail and seven if the secrets leave Hong Kong.

Collaborating with “external forces” to bring about interference over areas including government policy, the legislature, courts or elections will now attract a jail term of 14 years.

For those indulging in espionage, which includes entering prohibited places and intercepting information or documents of use to an external force, they will attract a jail term of 20 years.

The act of treason, which includes joining an external armed force at war with China will get you a maximum life imprisonment. For those who take part in military or armed “drilling” with an external force without official permission, there’s a jail term of five years.

Insurrection, mutiny and sabotage also attract a maximum penalty of life imprisonment.

Article 23 also empowers Hong Kong’s chief executive to make any subsidiary legislation to safeguard national security after consulting his executive council. New offences under the subsidiary laws could be punished with a maximum seven years’ imprisonment.

Article 23 will also change the way law enforcement functions. For instance, under the new law, police can detain suspects for up to 16 days before charging them, up from the current maximum of 48 hours. The authorities can also restrict suspects from meeting lawyers and curb their movements and communications for months if they are granted bail.

The legislation can also be applied to acts committed outside the city by both residents and businesses.

How will this affect people, businesses and journalists?

Financial businesses, who often deal with sensitive corporate information are worried about some provisions related to the protection of state secrets. Legal scholar Michael Davis told AFP that the new law would have “dramatic” impacts. It takes the existing Beijing-imposed law “to a much higher level by… fully embracing the mainland system,” he said, calling it a transition from “a liberal constitutional order to a repressive national security regime.”

Some foreign business leaders said the cost of complying with the new law could result in investors directing their capital elsewhere. Other experts warned that NGOs could be spooked.

Journalists are concerned their reporting might also inadvertently lead to legal issues. A leading media professional group, Hong Kong Journalists Association, pointed to some provisions involving state secrets that do not require proof of intent to harm national security. Although the government added a public interest defense in the bill, the scope is more limited than what they had recommended, the association said.

The government has tried to assuage the concerns, saying the legislation targets “an extremely small minority of people” who endanger national security, and insisting that normal business people, individuals, organisations, and the media sector “will not unwittingly violate the law.” City leader John Lee has said passing Article 23 will allow the government to focus on “improving the economy”.

Activists in Hong Kong will face harsher penalties if they break the sedition law. Amnesty International’s China Director Sarah Brooks worried that the new crime broadly defined as “external interference” could lead to the prosecution of activists who interacted with overseas individuals or organisations and be “framed as ‘endangering national security.'"

Moreover, the new law requires citizens to report to authorities if they know others are committing treason. Failure to report could be penalised by up to 14 years in prison. Ronny Tong, an adviser to the city leader, has said religious professionals are not exempt, even if they heard about the acts during confession.

What are critics of the legislation saying?

Western nations and several organisations have expressed their concern over Article 23. United Nations High Commissioner for Human Rights Volker Turk said in a statement, “It is alarming that such consequential legislation was rushed through the legislature through an accelerated process, in spite of serious concerns raised about the incompatibility of many of its provisions with international human rights law.”

The European Union said in a separate statement on Tuesday it was concerned about the “potential impact on the rights and freedoms of the people of Hong Kong” and the bill had the potential to “significantly” affect the work of the EU’s office as well as organisations and companies in Hong Kong. “This also raises questions about Hong Kong’s long-term attractiveness as an international business hub,” it said.

The United States also expressed alarm over the law. “We believe that these kinds of actions have the potential to accelerate the closing of Hong Kong’s once open society,” State Department spokesman Vedant Patel told reporters. “We are alarmed by the sweeping and what we interpret as vaguely defined provisions in the law,” he said.

The UK government also slammed the Hong Kong legislature’s passing of the tough new national security law. Foreign Secretary David Cameron said the new law, which imposes life imprisonment for crimes related to treason and insurrection, had been rushed through. “The broad definitions of national security and external interference will make it harder for those who live, work and do business in Hong Kong,” he said in a statement.

“It fails to provide certainty for international organisations, including diplomatic missions, who are operating there.

“It will entrench the culture of self-censorship which now dominates Hong Kong’s social and political landscape, and enable the continuing erosion of freedoms of speech, of assembly, and of the media.

“The overall impact of Hong Kong’s new national security law is that it will further damage the rights and freedoms enjoyed in the city.”

With inputs from AP, AFP and Reuters