We have submitted a response to the Hong Kong government’s Article 23 proposal with the kind assistance of Professor Johannes Chan SC.
Our key concerns are:-
- Draconian: The Consultation paper (the “Paper”) introduces new offences, enlarges the scope of existing offences, revives an obsolete offence, and creates new powers for law enforcement. With its overemphasis on securitization, the Paper fails to acknowledge other competing values in society, including individual freedoms and the public interest in transparent government, etc.
- Lack of reference to Hong Kong’s fundamental human rights obligations: The Paper states blandly that “safeguarding national security is fundamentally consistent with the respect and protection of human rights”. This is conceptually wrong and fails to consider the proportionality test in full. As a local enactment, the new provisions under Article 23 are subject to Hong Kong’s human rights obligations such as under Articles 39 of the Basic Law and international treaties like the International Covenant of Civil and Political Rights (“ICCPR”) as applied to Hong Kong. Nor has any reference been made to the well-known Johannesburg Principles. These ought to be expressly acknowledged.
- Definitions are too wide and vague: The definitions of “national security” and “state secrets” are adopted wholesale from the mainland. These definitions are too wide, and hence make elements such as the “intent to endanger national security” also fluid, ambiguous, and sweeping. There is also no elaboration on the meaning of “endangering national security” or the level of harm that is required.
- Low threshold to conviction: The “intent to endanger national security” (or in some cases, even recklessness) is sufficient to elevate an ordinary criminal offence to a national security offence, without requiring actual serious harm or even a significant risk of harm to national security. The offences are so wide that a person chanting a prohibited slogan in a public place, without anyone present to hear it, could nonetheless be convicted of a national security offence merely because of their intent.
- Missing defences: The Paper does not provide for defences for acting in the public interest, whistleblowing, genuine news reporting etc. It is reported that the Government has been “actively considering” whether to allow the public interest defence for the media. However, the Secretary for Justice stated that even if the public interest defence is to be introduced, it will have a high threshold (under “extreme circumstances”), which will defeat the whole purpose of the defence. Per the European Court of Human Rights, the hindering of access to information which is of public interest “may discourage those working in the media, or related fields, from pursuing such matters.” They may no longer be able to play their vital role as public watchdogs and their ability to provide accurate and reliable information may be adversely affected.
- Cherry-picking overseas references: The government justifies draconian provisions with references to laws in other common law jurisdictions, while ignoring universal condemnation of the 2020 National Security Law and the colonial sedition offence.
- References to overseas laws are self-serving:
- The Paper makes no reference to extensive safeguards in other jurisdictions. For example, the presumption of bail is not reversed, there are no designated judges, and constitutional challenges are available. Further, in overseas jurisdictions referred to, there is wider socio-political scrutiny present in democracies such as rigorous scrutiny by a popularly-elected legislature and the existence of a free press to check against abuses.
- Lowest denominator: In several of the overseas offences referred to, the specific law consists of elements of different thresholds. The Paper refers only to the lowest or most general criteria to generate a new catch-all offence.
- The Paper ignores higher threshold elements (such as the “foreign power condition”) and statutory defences present in overseas laws, all of which exist to constrain the encroachment on fundamental rights.
The government has opted for broadly defined offences and widened enforcement powers in order to anticipate all kinds of potential future challenges to the official concept of national security. And yet, a truly healthy, secure society necessarily encompasses a range of opinions. By adopting a hard-handed approach, the government risks shutting out opportunities to improve its governance. Securitization begets more securitization: perhaps the government is content to adopt this approach, but it is at least questionable whether this is authorized by the populace or welcomed by the international community.