Hong Kong Basic Law Article 23 and the threat to freedom

In October 2023, John Lee Ka-Chiu, Hong Kong's chief executive, announced the intention to develop Hong Kong’s own National Security Law. This law would fulfil a constitutional mandate, as Article 23 of Hong Kong Basic Law, its mini-constitution, expresses that “The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies,” as a reflection of the “one country, two systems” regime. Although a similar law was passed by Beijing following the 2019-2020 pro-democracy riots in Hong Kong, the new law aims to cover all the offences captured in the Basic Law, but always in accordance with the definitions and penalties enshrined in Chinese law. The offences that will be defined by this law are treason, insurrection, theft of state secrets, sabotage endangering national security and external interference in domestic affairs. According to John Lee, independence advocates and foreign influence in Hong Kong’s affairs are major dangers to the region’s security. 

The implementation of the law has raised several voices in the international sphere which are extremely worried about the consequences the law may bring, especially in economic and social terms. Sarah Brooks, Amnesty International’s China director, expressed that “this is potentially the most dangerous moment for human rights in Hong Kong since the introduction of the National Security Law in 2020.” In economic terms, the German commerce chamber also expressed its worries regarding the new law and the possible alignment it could bring between Hong Kong and Chinese interests. 

The widespread condemnation reflects the ambiguity of the text, which could lead to a dangerous situation for the citizens of Hong Kong and the status of Hong Kong as an autonomous region.

Background

To find an explanation for the new security law that is about to be established in Hong Kong, it is necessary to look back to the colonial era of Hong Kong under British control. In 1997 the UK withdrew from the region, and it became a Special Administrative Region (SAR) of the People’s Republic of China under the “one country, two systems” order. This principle, which is also applied to Macau, means that Hong Kong can have certain autonomy in political and legal matters, while there are other areas which are reserved for Beijing. Therefore, Hong Kong had the liberty to control its citizens’ freedoms and liberties for 50 years.

Before this, in 1984, the Chinese and British governments signed the Sino-British Joint Declaration, in which both countries established the conditions and requisites for the transfer of Hong Kong to China in 1997. A few years later, in 1990, the Basic Law was enacted, governing the most institutional matters of the region, and acting as a constitution. Article 23 of the Basic Law establishes that Hong Kong has to enact laws destined to regulate some criminal matters, which are treason, secession, sedition, subversion, theft of state secrets, conduction of political activities by foreign political organizations or bodies, and the establishment of ties between political organizations of Hong Kong and foreign political organizations.

In order to comply with this legal mandate, in 2003 the government of Hong Kong announced the enactment of the laws on these criminal offences. Nonetheless, half a million Hongkongers took to the streets to protest against this political movement and the government refrained from following with the law. 

Despite the freedoms and rights that were supposed to be enjoyed by the inhabitants of the enclave, rights groups constantly accused the government in Beijing of interfering in Hong Kong and its institutions, thus diminishing the autonomy and democracy there. This is why, in March 2019, after the introduction of a bill amending the Fugitive Officers Ordinance, a massive riot emerged in Hong Kong, which lasted until mid-2020 due to the COVID-19 restrictions.

The main consequence of these riots was the implementation of the National Security Law by Beijing. This law was passed to fight against what China interpreted as a serious attack on Hong Kong. The law was able to criminalise four offences which, according to Article 23, had to be regulated by the Hong Kong government. The offences covered by the National Security Law were secession, subversion, terrorism, and collusion with foreign forces. Nonetheless, the law itself established in its 7th article that Hong Kong had to complete the legislation to safeguard national security as it was stipulated in its Basic Law, as it is doing right now.

This law brought multiple criticisms and sanctions from the international sphere, as it significantly threatened the civil rights of people in Hong Kong and the autonomy of the region. Moreover, the critiques increased when, a month before the enaction of the National Security Law, the government arrested Jimmy Lai, founder of the tabloid ‘Apple Daily’, for some tweets and news defending democracy and condemning the newly imposed law. These critiques are also increasing because of the new security law for the enclave.

In 2022, Chinese President Xi Jinping expressed his aim for Hong Kong to begin developing its own law as soon as possible, and finally, in 2023 John Lee Ka Chiu announced the consultation period for the new law, which lasted from 30th January to 28th February. The final text of the law was published on 8th March.

How will the law affect freedom in Hong Kong?

Multiple civil rights associations and defendants all over the world have raised their voices to denounce that if the law is applied several civic rights and freedoms in Hong Kong will be reduced. These associations include, for example, Human Rights Watch and Amnesty International, which has also contributed to the Consultation Paper with a statement discarded because of anti-China and anti-government messages. The association's claims about the new law normally revolve around the scarce specificity of the law describing the acts which may fall under the offences. 

To cite one of them, clause 22 of the bill describes “acts with seditious intention.” It says that an act with seditious intention is one committed by a person inciting another person into hatred, contempt or disaffection against the systems or institutions of the HKSAR or the Chinese government. Although in a subsection it says that the seditious intention will not exist if the person expresses his or her opinion to improve the system or institutional order, the ambiguity of the words undoubtedly portrays the defencelessness of the citizens. The ambiguity with which the law is written allows the government and the authorities to interpret it as they wish. This vagueness is repeated throughout the law, and it is one of the most repeated arguments claimants use to denounce it.

The main issue is that, apart from the offence of acts with a seditious intention, the intent of the perpetrator is a key factor in determining the unlawfulness of his acts in many of the offences described and penalised by the law. For instance, in the theft of state secrets offence, it is said that the person will be doing a criminal act if he does it with “intent to endanger national security.” This reference to the intent of the person to endanger national security appears more times in the text of the law, as also describes the crimes of espionage and collusion with a foreign entity. 

Nonetheless, the intent with which a person performs a criminal act cannot be the most significant requirement to punish the person for doing it. In the end, the intent is the subjective part of the crime itself and is extremely difficult to prove whether the alleged criminal has committed the act with a specific intent or not. That is why, although the mindset of the person towards the crime is important, it should not be taken as the main part of the crime, as it could lead to a high degree of ambiguity, where the authorities would have the right to decide whether the person did the crime with or without that required specific intention. This is why the law is being criticised, as the last word to determine if the criminal did the action to which the law refers is, precisely, on the people wanting to criminalise those acts.

Therefore, the scope of the freedom of speech is becoming extremely narrow, diminishing the possibility of people expressing their feelings and thoughts about the government and the HKSAR, as they could be punished if the authorities determine that they are doing it with a specific intention to endanger national security.

One of the freedoms that has been the most violated with the introduction of the new law, and which was also reduced with the introduction of the National Security Law in 2020, is the freedom of the press. As for the words a person can tell other people and can fall under the acts with seditious intention, the publications a person involved in the press publishes can also be subject to the same treatment. If they are seen as endangering national security or that seditious intention, their publications, the enterprise and even the person will be in trouble.

One of the most notorious issues in this line is the arrest of the journalist Jimmy Lai. Jimmy Lai is the founder of the tabloid ‘Apple Daily’, which was one of the most spread Chinese-written journals in the region, and a high defendant of the respect for human rights and democracy in Hong Kong. That is why in August 2020, a month after the introduction of the Chinese National Security Law in Hong Kong, he was arrested under the allegations of sedition and collusion with external forces, which were also portrayed in the NSL, due to tweets, interviews and publications done via the tabloid, talking about the reduction in freedom and democracy that the NSL would bring to Hong Kong and its citizens.

His trial was delayed several times, and he was forced to be under custody during that time so; for the moment his last trial began on December 18th, 2023, he had been more than 1000 days under custody by the Hong Kong authorities. Moreover, in 2021 the ‘Apple Daily’ was forced to close as senior staff were arrested as well. Many associations and organisms have pleaded for the liberation of Jimmy Lai and condemned the procedural faults in the trial, as denying the possibility of him being defended by a British lawyer. Even the UN Special Rapporteur on Counterterrorism and Human Rights expressed his concern relating to the trial of the journalist and the new Article 23 law. Although the chief executive said the law was not going to have retroactive effects, he warned that previous legislation may apply to offences to be laid down in the law.

This shows that the new law is about to aggravate the lack of freedoms in Hong Kong, including procedural ones, extending what was already introduced by the National Security Law in 2020.

Another important right to be cut by the law is the freedom of association. The new law has constantly in mind the issues that took place before and after the introduction of the NSL, the massive riots that hit Hong Kong with pro-democracy messages for more than a year. That is why it also tries to deter people from taking part in groups which want to promote a change in the Hong Kong government and its politics. Moreover, the government has expressed its fears that there are certain local organisations in the region which, together with external organisations and governments, try to attack the national sovereignty of the HKSAR. That is why the law explicitly defines the “collusion with an external force” offence, if any person or group in Hong Kong, an ally of any other external organism, tries to influence anyone in the region, or specially in the government, to do anything against the national security of the Special Administrative Region.

These are some examples of how the government in Hong Kong has been trying to silence the voices which claim democracy and liberties in the region, by enacting laws capable of criminalising acts which, in other regimes, would seem to be helping the government to improve in its activities.

Is the law consistent with ‘one country, two systems’ and the SAR status of Hong Kong?

The ‘one country, two systems’ principle is how Hong Kong organises its relationship with Beijing. Under this principle, Hong Kong, although being a part of the country of China, has a different system than the mainland. Then, Hong Kong maintains a capitalist economy, which has helped it to become an international economic hub; a different legal system based on common law; and a higher degree of freedom than China. Like that, Hong Kong can maintain its unique character while being a part of China.

Nonetheless, several voices have raised concerns on whether the introduction of the new law could damage this core principle of politics in Hong Kong, as some of their provisions may erode the status of Hong Kong as a Special Administrative Region subject to the one country two systems principle.

In one sense, the enactment of the law can divide the duties between China and Hong Kong under this principle, as it fulfils one of the constitutional mandates of Hong Kong according to its Basic Law. However, the law is full of references to Chinese laws and concepts taken from those laws which, in the end, erodes the legal system of Hong Kong and brings it closer to the Chinese one.

Apart from the erosion of civil rights and liberties that have been mentioned, the law is also a threat to economic liberties, which could endanger the situation of Hong Kong as an economic giant and attractive to the rest of the countries in the world. Although the excuses made by the officers of Hong Kong are that the law could improve the commercial situation of the region as it creates a more protected situation even in economic terms, numerous enterprises have expressed their worries towards the law. The worries for the enterprises are mostly focused on what is going to be understood as state secrets, as the ambiguity with which the law is written could place international enterprises wishing to establish in Hong Kong in a situation of uncertainty towards how they collect the necessary information.

Moreover, something that has also worried the international community is the extraterritorial effect the law is said to have. The US Department of State said that it was worried about how the government in Hong Kong would try to apply the law to residents in other countries as a way of repression even outside Hong Kong. Furthermore, it states its worries about the approach between Hong Kong and Chinese laws and the cut of freedoms in the region, which could contravene some international agreements and organisations.

Besides, the whole situation and especially the narrow scope the law brings to civil freedoms and liberties is discouraging the whole world from thinking of Hong Kong as it used to, a free territory with an economic interest in which they could do business.

Conclusion

The implementation of the Article 23 of Hong Kong Basic Law has meant a wide wave of concern both internationally and in Hong Kong itself, especially referring to the impact of the law on the freedoms of Hongkongers and the status of the region and its autonomy. Whereas the executive powers of Hong Kong and China defend the law as it fulfils a constitutional mandate and helps to the protection of national security; the critics are based on its ambiguous text, which in the end creates a real threat to civil liberties, economic stability and the ‘one country, two systems’ principle.

Article 23 criminalises acts of treason, secession, sedition, subversion, theft of state secrets, the establishment of relations with foreign political bodies and the conduction of political activities by foreign entities. Nonetheless, due to the ambiguity, there exists a risk of abuse by the authorities who have to apply it. Moreover, the importance of the subjective sphere when blaming a person for the crimes creates a sense of defenceless to Hong Kong’s inhabitants.

The erosion of civil liberties has raised alarms in the international community, which have been emphasized by the arrest of figures like Jimmy Lai and the ban of certain publications with pro-democracy and anti-government messages, summed to the extraterritorial scope of the law, capable of creating a climate of concern in other countries as well.

To sum up, although the officials of Hong Kong announced the law to be a necessary weapon to guarantee national security, the letter of the law shows how it will affect the status and life in the region, able to extinct democracy in the region and affect the role of Hong Kong as a whole.