Implications of Article 23 Legislation on the Future of Hong Kong

Executive Summary:

• Hong Kong’s Article 23 legislation will integrate the PRC’s national security framework into Hong Kong’s legal system, impacting the city’s rule of law and foreign business interests.
• Broad and vague definitions of national security will create challenges for Hong Kong’s common law system. It will likely contribute to the erosion of legal certainty and judicial independence.
• Proposed offenses such as “theft of state secrets” and “espionage” are ambiguously defined, creating uncertainty. This may cause issues for foreign businesses collecting information for due diligence and will further chill freedom of expression in the city.
• The legislation aims to isolate Hong Kong further from the liberal democratic world, granting extensive powers to the government for political control and undermining public oversight and due process rights.

On February 28, the Hong Kong government ended a month-long public consultation of “Basic Law Article 23 legislation” (The Standard, February 28).”This refers to the local legislation of a national security law, which is required by the city’s mini-constitutional document following the “one country, two systems” framework of the People’s Republic of China (PRC) (HKSARG, January 30). The public consultation document (hereafter, “the Document”) issued by the Hong Kong government contains proposals which, if implemented, will be deleterious to Hong Kong’s rule of law system. These proposals also impact the interests of foreign business communities and global civil society actors.

Vague Terms As Hong Kong Law Converges with PRC Legal Framework

Article 23 of Hong Kong’s Basic Law stipulates the prohibition of acts endangering national security by the local government of the Hong Kong Special Administrative Region (HKSAR). The first legislative attempt failed in 2003 after more than half a million citizens joined rallies to express their disapproval of the bill. Although the local government did not re-introduce the bill, the PRC government has persistently requested that Hong Kong fulfill its obligation to “safeguard national security.” One ostensible instance is the State Council’s white paper on “one country, two systems,” released two months after President Xi Jinping introduced the concept of a “holistic view on national security” in 2014 (SCIO, June 10, 2014). This white paper asks government administrators, including independent judges, to love the country and safeguard the PRC’s national security and development interests (Lai, 2023). The following year, the PRC promulgated “the National Security Law of the People’s Republic of China” in the mainland, providing that “the Hong Kong Special Administrative Region and Macao Special Administrative Region shall fulfill responsibilities for the preservation of national security” (Article 40(3)). For the PRC, these obligations have yet to be satisfied, despite Beijing’s introduction of a national security law (NSL) for Hong Kong in mid-2020. As Article 7 of the NSL states, the Hong Kong government is still required to complete additional legislation of its own to safeguard national security under the Basic Law (HKSARG, June 30, 2020).

The latest Article 23 legislative proposal accomplishes the transplanting of “safeguarding national security” as a legal framework into Hong Kong. Unprecedentedly, the Document affirms that the definition of “national security” in the 2015 national security law will be adopted in the new legislation—going beyond the definition in the 2020 NSL (Xinhua, July 10, 2015):

“National security refers to the status in which the State’s political regime, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major interests of the State are relatively free from danger and internal or external threats, and the capability to maintain a sustained status of security (国家安全是指国家政权、主权、统一和领土完整、人民福祉、经济社会可持续发展和国家其他重大利益相对处于没有危险和不受内外威胁的状态，以及保障持续安全状态的能力).

The Document further stresses that the Hong Kong government “shall discharge its responsibility of safeguarding national security in accordance with the holistic view of national security” (Paragraph 1.5). Adopting such ideological terms into Hong Kong’s domestic law would inevitably create tensions with the principles of the rule of law. For instance, the ambiguity inherent in the concept of an “holistic view” of national security creates issues around certainty as well as around consistency with the wider common law corpus. Under the PRC’s national security imperatives, such concepts are too vague and overbroad for criminal prosecution and trials to be conducted following the city’s common law system. Other concepts that cause the same difficulties include “economic security,” “cultural security,” “resource security,” and “sustainable economic and social development.” This would also be a challenge for local judges, trained mainly in the English legal system, as they would have to adjudicate without referencing such ideological concepts.

The proposed offences of the “theft of state secrets” and “espionage” in the Document (Chapter 5) are further evidence of the erosion of Hong Kong law. The document states that the new legislation will define “state secrets” with reference to “the Law of the People’s Republic of China on Guarding State Secrets.” In other words, information “concerning the economic and social development” of the mainland and Hong Kong could also be considered state secrets if “the disclosure of the information without lawful authority would likely endanger national security” (Paragraphs 5.8 and 5.9). The Document also refers to the PRC’s “Counterespionage Law” to expand liability-bearers’ scope beyond spying organizations (Xinhua, March 27, 2023). This law defines espionage activities as including “Activities … carried out by espionage organizations and their agents, or instigated, supported, or colluded in by domestic or foreign institutions, organizations, or individuals (间谍组织及其代理人实施或者指使、资助他人实施，或者境内外机构、组织、个人与其相勾结实施的…活动)” (Article 4(1), cf. the Document, Paragraph 5.15), as well as “Directing attacks against targets for the enemy (为敌人指示攻击目)” (Article 4(5)). The Document, meanwhile, suggests replacing the ordinary term “enemy” with “external forces” for the offence of espionage. This refers to “any foreign government, … external political organization, etc.” and their “associated entities and individuals” (Paragraph 5.19). Ambiguously and broadly defined, there are no clear boundaries as to what and whom could be deemed criminal under this proposed law.

Chinese courts have recently convicted foreign business executives for espionage. The lengthy jail sentences these executives have received reveal how foreign corporations in the mainland are vulnerable to the PRC’s national security regime (BBC News January 26). Transplanting anti-espionage elements from the mainland’s jurisdiction into Hong Kong’s local legislation may encourage foreign businesses to draw parallels with how the Chinese authorities target business groups with national security laws (Lai, 2024).

Information Control And Private Enterprise Concerns

The Hong Kong authorities are eager to further tighten information control in the city as a corollary of stricter security legislation. The Document suggests raising the penalties for the offence of “seditious intention” and of “possession of seditious publication,” which has been used to prosecute pro-democracy media outlets including Apple Daily (蘋果日報) and the Stand News (立場新聞) (Paragraph 4.8). In the past three years, the authorities have been using the sedition law to charge ordinary citizens for criticizing government policies on digital platforms. Public prosecutors have alleged that these outlets have published “seditious” reports, feature interviews and opinion articles. It is foreseeable that an enhanced version of the sedition law would have a further chilling effect on information circulation, as citizens would be disincentivized from sharing critical views in both the public and digital domains.

The business community would be particularly affected by the new “theft of state secrets” and “espionage” offences. Under the proposal, espionage includes “obtaining, collecting, recording, producing or possessing, or communicating to any other person, any information, document or other article that is, or is intended to be, for a purpose useful to an external force” (Paragraph 5.20). One challenge to foreign investors, therefore, is the risk of conducting due diligence of their operations in Hong Kong. Risk assessments are required for background checks of clients from state-owned enterprises and internal investigations of mainland-based links in supply chains. The Document stresses that “intent to endanger national security” is a prerequisite for an activity to constitute an offence. However, the overbroad definitions of “national security” and “external force”, alongside the language of “[information] for a purpose useful to an external force” suggests that the law could be arbitrarily enforced against foreign businesses who merely seek to comply with the due diligence requirements of their home jurisdictions. Such concerns will only grow as regulatory frameworks for supply chain due diligence emerge as a norm in the West, while the penalty for individuals convicted of espionage-related crimes could be a suspended death sentence (Reuters, February 5).

The Document suggests that disinformation may constitute an espionage offense. Paragraph 5.20 states that the offense targets acts including “Colluding with an external force to publish a statement of fact that is false or misleading to the public” with intent to “endanger national security.” Similarly, for the offence of “foreign interference,” “knowingly making a material misrepresentation” serves as an “improper means” for one to interfere with the policymaking of the PRC and Hong Kong governments. The Document also targets prejudicing “the relationship between the China or the HKSAR and any foreign country” (Paragraph 7.6). The underdefined terms used increase the scope for the government to accuse an individual or an entity of spreading disinformation to endanger national security.

The 2019 protests in Hong Kong are a clear motivator for this part of the proposed law. The authorities, who characterize the events five years ago as “the Hong Kong version of ‘colour revolution’” (Paragraph 1.8), have repeatedly accused some activists and journalists of publishing disinformation on police brutality. However, many international NGOs, such as Amnesty International, have published verified testimonies and reports which constitute allegations of police abuse of power as well as torture in Hong Kong (Amnesty, September 19, 2019). If the government could determine the meaning of misleading statements or material misrepresentation in a legal case, then foreign media outlets, international NGOs, foreign commercial chambers, and netizens inside the city would fear criminal liability when publishing information adversarial to the regime.

Isolating Hong Kong And Removing Judicial Safeguards

One possible objective of the legislation is to isolate Hong Kong further from the liberal democratic world. A lengthy passage in the Document accuses “external forces” of inciting “hatred” against the political system, as well as sowing seeds for “colour revolution” in the name of “monitoring human rights” and “fighting for rights” (Paragraph 2.6). It infers these allegations to justify the new offense of “external interference,” applicable to the aforementioned “associated entities or individuals” of foreign governments or organizations. While “political organizations” are not specified in the Document, the current Implementation Rules of Article 43 of the NSL state that political organizations could refer to any organization outside the PRC, aside from political parties, that pursues political ends inside Hong Kong (HKSARG, July 7, 2020, Schedule 5 (1)). Such a broad notion implies that foreign NGOs, churches, federations of unions, and charitable foundations could be considered “external forces.” This speculation echoes the condemnation of rights-focused groups above and aligns with why and how PRC authorities regulate international NGOs. Even though the Document promises to allow exchanges between local groups and external equivalents, these must be conducted by “lawful and proper means” and “must not pose any national security risks” which authorities can define arbitrarily. The extraterritorial reach of the proposed Article 23 legislation, in line with the current NSL, would continue to impact local and diasporic communities of Hongkongers who may wish to cut ties with their counterparts to minimize the legal and political risks they face.

The Article 23 legislation is likely to be enforced through the government’s abuse of power. In 2020, the NSL not only introduced new offences and enforcement institutions, it also reshuffled the local criminal justice system. Consequently, the Chief Executive of Hong Kong can designate judges to try national security cases and the government’s attorney general—known as the Secretary for Justice—can replace a jury trial with a three-judge bench. The Chief Executive can further impose a certificate to affirm evidence related to state secrets in a national security trial and bar foreign lawyers from defending such cases.

The authorities now enjoy extensive powers to seize suspects’ assets and conduct searches without a court warrant. The local court used to have the power of judicial review against any local government’s acts. However, it has no jurisdiction to review decisions made by the National Security Committee, the supreme body operating the city’s national security apparatus. The Document indicates that such procedural practices will remain in place, if not be sharpened. For instance, the government has proposed to extend the detention of suspects and prohibit access to lawyers on certain conditions (Paragraphs 9.12–9.13). Predictably, the goal is to restrict even further the due process rights of criminal suspects allegedly endangering national security.

Looking Forward

The overarching goal of the Article 23 legislation is to broaden the scope of surveillance and political control in society. As the Document shows, this is to be achieved through weakening both the flow of information and the public’s access to it. This will incapacitate citizens’ abilities to monitor government conduct and foster a free, open, and transparent society. The alignment of Hong Kong’s legislative proposal with the PRC’s national security agenda proves that at least some government forces are eager to isolate Hong Kong further from the broader global community, turning it into a relatively closed society, akin to that of the mainland.

The Hong Kong government concluded the legislative consultation on Wednesday, February 28. Such short notice for opinion submissions on legislation, compared with a three-month-long public consultation provided in 2002, indicates a desire to speed up the legislative process as much as possible. However, it may also be to conform with Beijing’s political calendar. The annual “two sessions” will be held in early March. There, Beijing will likely make a final decision on the legislative bill and many political consultants and National People’s Congress (NPC) representatives from Hong Kong will receive final instructions from top officials.

Uncertainty pervades the PRC’s relationships with both the West and Hong Kong. On the one hand, central authorities continue to proffer an olive branch to the West to rebuild economic ties. On the other, nationalistic sentiments against “foreign forces” and threats to “national security” remain a popular narrative of hawks in the PRC and Hong Kong governments. Hardliners have led an increasingly repressive approach to Hong Kong’s governance. In light of events in the past three years, the tensions between alleviating economic pressures and amplifying the need to safeguard national security will continue until the top authorities determine the course of the legislation, marking the future of Hong Kong’s autonomy and its role between China and the West.