What is Hong Kong’s new proposed security law? Why is it controversial?

Hong Kong is proposing a new national security law – and many are worried about its impact. The development comes four years after Beijing imposed a sweeping national security law to bring ‘stability’ to the semi-autonomous city following months of pro-democracy protests. The city on Tuesday released a 110-page document outlining its plans for the legislation. But what do we know about the law? Why is it so controversial? Let’s take a closer look:

The proposed law is known as Article 23.

The new law is designed to update or create new laws against

• Treason
• Sabotage
• Sedition
• The theft of state secrets and espionage
• Tightening control over foreign political bodies and organisations operating in the city.

The need for those specific laws is briefly stipulated in Article 23 of the Basic Law. Basic Law is the mini-constitutional document that has guided Hong Kong’s relations with its Chinese sovereign since its handover from British colonial rule in 1997.

Article 23 stipulates that the city “shall enact laws on its own to prohibit acts and activities that endanger national security.”

The new law could expand the government’s ability to prosecute residents for offenses like collaborating with foreign forces to influence legislation or “publish misleading statements,” and to close down civil society groups. Highlights of the package include a ban on “threatening national security by collaborating with external forces to interfere in the affairs of our country or the HKSAR through improper means.” The document also suggested that colluding with an “external force” to publish a misleading statement with the intent of endangering national security could be considered an espionage offence. It also bans inciting public officials to abandon the Basic Law or their allegiance to Hong Kong and China, expanding an existing law that only covered members of the police and other security forces. [caption id=“attachment_12955422” align=“alignnone” width=“640”] Representational image.[/caption] Lee promised that people could still criticise the Hong Kong government and express opinions, as long as they do not intend to endanger national security. A previous attempt to enact Article 23 in 2003 was shelved after an estimated 500,000 people staged a peaceful protest against proposals. Those protests led to the resignation of the then security minister. The Hong Kong government has released a public consultation document, but no deadline for the passage into law has been announced. Why is this happening? While Hong Kong has several old, vague and arcane laws as remnants from its time as a British colony, Beijing is looking to further tamp down on the city.

Since 2020, many of the city’s leading pro-democracy activists have been arrested, silenced or forced into exile.

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Dozens of civil society groups have been disbanded, and outspoken media outlets like Apple Daily and Stand News have been shut down. The 2020 law imposed by Beijing dealt with only some offences, such as collusion with foreign forces, and also allowed mainland national security officers to be based in the city for the first time. It also created a provision where suspects could be sent for trial in the mainland, where the courts are under the control of the ruling Communist Party. Some 47 people were charged under the 2020 law for participating in an unofficial primary election, and two were convicted during the same time under an older sedition law for clapping in court and insulting a judge during a trial. The 2020 law highlighted the need for Hong Kong to continue its work on Article 23, creating local legislation. Senior Hong Kong officials say it is need to fill legal holes, particularly to deal with what they describe as “soft resistance” after 2019, and internet control. As per The Guardian, the law also deals with “extraterritorial effect.” Beijing essentially claims its law is valid anywhere in the world.  This has led to several countries voiding their extradition treaties with Hong Kong. However, as per The Guardian, while the two laws would work in tandem Beijing’s law would supersede this proposed law. Security chief Chris Tang has repeatedly said the government needs better tools to deal with espionage and the activities of foreign agents in the city. Tang said the package would include sections covering state secrets and espionage, treason, sedition and the use of computers and electronics systems to conduct actions endangering national security. Tougher penalties against sedition, a colonial-era law which currently carries a two year sentence, are also expected in the package. The proposal includes an expanded definition of state secrets that covers the “economic and social development of Hong Kong,” as well as defence and diplomatic activities. “This issue has been hanging over our head for 26 years,”  Tang Pink-keung, Hong Kong’s secretary for security, was quoted as saying by The Guardian. Lee claimed other countries, including the US, UK and Singapore, have similar laws to safeguard security and Hong Kong would draw from them. Lee said that the law will not provide for suspects to be transferred to mainland China for trial, unlike the 2020 law. Why are people worried?

Critics worry authorities will use a domestic national security law as another tool to crack down on dissidents, further eroding freedoms that were promised to the former British colony when it returned to Chinese rule in 1997.

The Beijing-imposed security law criminalised subversion, advocating secession, and collusion with foreign forces to intervene in the city’s affairs as well as terrorism, but did not cover all the offenses authorities wanted to target.

SCMP quoted Democratic Party chairman Lo Kin-hei as saying more clarity is needed.

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“Political parties were often accused of foreign interference when they made similar remarks with foreign politicians. The government should clarify further to ease people’s worries,” Lo said. “How will the authorities strike a balance between freedom of speech and national security?”

Eric Lai, a research fellow at the Georgetown Center for Asian Law, said that the one-month public consultation was shorter than the three months typical for important laws, saying it appeared to be “window dressing.”

[caption id=“attachment_13558992” align=“alignnone” width=“640”] China, mirroring the priorities of President Xi Jinping, updated its own state secrets laws in 2023.[/caption] Businesses including foreign banks, hedge funds and private research operations, along with diplomats and academics are watching developments closely. Some are concerned the bill could lead to controls on the internet or impact data operations. The consultation document does create a new sabotage offence of unlawfully using a computer or electronic system to endanger national security. Research of China’s politics, economy and military and due diligence investigations into individuals and companies on the Chinese mainland - all traditionally carried out by some Hong Kong firms and academics - could stray into areas of state secrecy, some fear. The consultation document defines a list of state secrets in Hong Kong, including economic, scientific, diplomatic and social secrets, but says to be classed as such they would have to endanger national security if released. The government suggested it may use the new law to cancel the passports of fugitives overseas, citing a similar US law.

“We think this could be a good way for handling absconded persons, thus the suggestion was added to the paper,” Tang was quoted as saying by SMCP.

Such laws could affect the many activists who went into exile fearing arrest.

The Hong Kong police has offered bounties of $128,000 on at least 13 activists abroad, including former lawmakers Nathan Law and Ted Hui, who they accuse of colluding with external forces to impose sanctions on Hong Kong and China. As per SCMP, Lee has vowed to form a “rebuttal team” to counter attacks on the law. “In the past, we have seen hostile forces carry out a lot of publicity work to slander and distort facts, especially on the internet,” Lee said. “I believe this will happen again in our legislative work this time. We will set up a rebuttal team in this area, especially on social media, to tell people the truth.” What do experts say? Simon Young, a professor at the University of Hong Kong law school, said while many unknowns remained, he thought the law would ultimately adopt broad definitions for both a foreign political organisation and a foreign agent. “It may well be that businesses or groups that have some connection with foreign governments might be captured here,” Young said. Scholars say as local laws, the new legislation could sharpen the at times vaguely worded 2020 law, and older colonial-era laws considered unworkable. “It almost certainly will set red lines where the existing laws are vague, particularly in defining state secrets and espionage,” said Young added. But Hong Kong’s leader John Lee on Tuesday insisted the law would meet international standards and protect Hong Kong’s rights and freedoms.

“Why now? We can’t wait. We can’t afford to wait any longer,” Lee said.

“While we, society as a whole, looks calm and looks very safe, we still have to watch out for potential sabotage, undercurrents that try to create troubles,” he added. He is claiming some foreign agents could still be active in Hong Kong. “Foreign agents and advocates of Hong Kong independence are still lurking in our society," Lee was quoted as saying by The Guardian. Lee has also claimed that rights and freedoms are “not absolute.” The 2019 protests “showed that without national security we cannot enjoy our rights or freedoms," he was quoted as saying. What about China? China, mirroring the priorities of President Xi Jinping,  updated its own state secrets laws in 2023. Beijing banned the transfer of any information related to national security and broadening the definition of espionage.

Some analysts say it remains vague.

Hong Kong’s own version has to deal with state secrets but with legislation compatible with the standards of the British-based common law, of which it remains a part. Hong Kong could bridge the two with some tight definitions of what is protected, bringing clarity, but “the mainland concept and legal definition of state secrets still looms large and we can’t ignore that,” Young said. Unlike the tensions that surrounding the bill in 2003, the final Article 23 bill is expected to pass easily and relatively swiftly, after formal readings of the bill and some debate in the Legislative Council. Changes to Hong Kong’s electoral system after 2019 mean that pro-establishment figures screened as “patriots” control the body. Public consultation for the law will remain open till 28 February, as per The Guardian. The draft text will be written later based on input from public consultation. Following the consultation period, the proposed legislation will be drafted as a bill that will be scrutinised by the Legislative Council. Once the proposed law reaches the legislature, lawmakers are expected to pass the domestic national security law without much opposition in the three readings given a lack of opposition lawmakers following an overhaul of Hong Kong’s electoral system. Lee did not give a timeline for enacting the law, other than that it should be done “as soon as possible.” With inputs from agencies