Hong Kong Speeds Up Article 23 Legislation in Full Swing, International Prospects Worrying

As China’s National People’s Congress (NPC) and Chinese People’s Political Consultative Conference (CPPCC) convene, the Hong Kong SAR government has accelerated the enactment of legislation on national security under Article 23 of the Basic Law, and the Legislative Council (LegCo) has convened additional plenary sessions. The Chief Executive, Mr Lee Ka-chiu, has reiterated the need to “complete the legislation as soon as possible”, which is undoubtedly aimed at further securing Hong Kong’s “second reunification”, and critics are worried that Hong Kong’s few remaining human rights and freedoms will be further eroded.

Accelerated Article 23 Legislation

Article 23 of the Basic Law of Hong Kong stipulates: “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 organisations or bodies from conducting political activities in the Region; and to prohibit political organisations or bodies of the Region from establishing ties with foreign political organisations or bodies”. After Britain handed over sovereignty over Hong Kong to China in 1997, Beijing repeatedly expressed its hope that Hong Kong would enact legislation on its own in respect of Article 23 as soon as possible, but it was never successful in doing so.

In 2003, the Hong Kong government’s attempt to push for legislation on Article 23 triggered hundreds of thousands of people to take to the streets in protest, which was the largest rally since the handover of Hong Kong’s sovereignty. Due to public pressure, the legislation on Article 23 was shelved. After a gap of 21 years, a one-month public consultation on Article 23 legislation was held from 30 January to 28 February this year. According to Mr Lee, 98.6% of the respondents expressed support and positive views during the public consultation period, indicating that the legislation has a strong public mandate. Just over a week after the end of the public consultation period, the Hong Kong government submitted the “National Security Bill” to the Legislative Council for scrutiny.

It is worth mentioning that they were supposed to attend and participate in the National People’s Congress (NPC) and the Chinese People’s Political Consultative Conference (CPPCC) in Beijing, but they were suddenly summoned to return to Hong Kong on Tuesday night to attend a joint meeting of the LegCo committees on the legislation of Article 23 of the Basic Law on the following day. This reflects that these arrangements were made in a rush and were not planned in advance, most probably to create a sense of crisis for the legislation of Article 23 of the Basic Law as soon as possible. Generally speaking, a bill requires several rounds of debates in the Legislative Council and a special meeting for the first and second readings, and the whole process may take several weeks. However, the HKSAR government claims that as geopolitics is now more complex and volatile, and threats may come out of nowhere, it must plug the gap in national security and complete the legislative work as soon as possible.

A few days ago, Xia Baolong, Director of the Hong Kong and Macau Affairs Office (HKMAO), met with the Hong Kong National People’s Congress (NPC) and the Chinese People’s Political Consultative Conference (CPPCC) in Beijing, and they both expressed the hope that the Legislative Council (LegCo) would pass the legislation on Article 23 of the Basic Law as soon as possible, arguing that Hong Kong has waited for 26-and-a-half years since the handover, and claimed they believed that Hong Kong would have greater protection under the rule of law after the enactment of the legislation, which would enable its people to live in greater peace and solidarity. Some politicians said that as 15 April is the National National Security Education Day and the activities for the 75th anniversary of the National Day will be launched, it is estimated that Article 23 will have to be passed in time in April.

Is the national security law not enough?

Hong Kong’s previous governments have not succeeded in enacting Article 23, but this time, the legislation will be completed within the first term of Li Ka-chiu, which is a reference to the stormy changes in Hong Kong’s situation in recent years. Since Xi Jinping came to power in 2012, he set up the National Security Council and put forward for the first time the “Overall National Security Concept”, and the 20th National Congress even said that “national security is the foundation of national revival”. Against this background, the legislation of Article 23 of the Basic Law in Hong Kong is no longer simply a “constitutional responsibility” as it was described in the early days of the handover, but a top priority and a major political task for Zhongnanhai.

Under the principle of “one day early, one day gain” for local legislation on Article 23 of the Basic Law, the Hong Kong government gazetted the more than 200-page National Security Bill last week. The Legislative Council completed the First and Second Readings, and the Bills Committee commenced scrutiny of the Bill immediately. The Bill covers more than 20 national security charges and their offence elements derived from the newly enacted and amended existing legislation, as well as the penalties for various offences, extra-territorial legal effect, etc., with a number of new enforcement powers or reduction of legal procedures.

The Hong Kong National Security Law to be enacted in 2020 is targeted entirely at the “anti-China referral” campaign that will break out in Hong Kong in 2019 as a result of the amendment of the Fugitive Offenders Ordinance. The “four counts” set out in the law are secession, subversion of state power, organisation and implementation of terrorist activities, and intervention by foreign powers, but it is not a comprehensive national security law per se, with only the first two partially overlapping with, and not covering, Article 23. It does not cover the other five offences under Article 23, namely, treason, sedition, theft of state secrets, political activities of foreign political groups in Hong Kong and liaison between local political groups and foreign political organisations. The legislation on Article 23 this time around seeks to make up for the deficiencies in this respect.

Moreover, as the Hong Kong National Security Law has been much criticised in the international community, many countries and international organisations have demanded that the relevant law be repealed. If the Hong Kong government completes the Article 23 legislation this time, it is very likely that it will reduce the use of the “imperial sword” of the National Security Law in the future, so as to balance the previous criticisms. Comparing the charges of the “National Security Bill” with those of the current law, many of the penalties have increased significantly. Among them, the offence of seditious intent has increased from the current maximum imprisonment of 2 years to 7 years, and the offence of colluding with foreign forces can be sentenced to 10 years of imprisonment, which is undoubtedly a severe punishment, and it cannot but make people worry about the future of Hong Kong, which has already lost a lot of its democracy and freedom.

Gradual progress and accelerated delinking

The original plan for Chief Executive Li Ka-chiu to return to Hong Kong on Wednesday, March 6, has suddenly turned into an overnight rush to Hong Kong. Beijing’s wish for Hong Kong to speed up the completion of the Article 23 legislation has undoubtedly given a clear signal to the Western countries, led by the US, that the confrontation over “camping” has become more and more acute, and therefore the so-called national security loophole has to be plugged as soon as possible. In addition, the European Union has earlier passed a resolution that China and Taiwan are not subordinate to each other, and the United States has listed Hong Kong, China, Russia, North Korea, Iran and other countries as its overseas enemies. The speeding up of the legislation on Article 23 at this point in time undoubtedly reflects the gradual increase in the speed of China’s delinking from the West.

Outside China, criticisms and queries about the legislation on Article 23 have been expressed by civil organisations, academics or political figures. A few days ago, the former Speaker of the House of Representatives of the United States, Nancy Pelosi, claimed on a social media platform that the legislation on Article 23 has expanded the Chinese Communist Party’s attack on Hong Kong’s fundamental freedoms to an alarming extent. A member of the Hong Kong Legislative Council scrutinising the draft legislation on Article 23 of the Basic Law asked, for example, whether it would be an offence to “possess seditious publications” if a person kept an old Apple Daily newspaper at home as a souvenir. Officials said it would be an offence to possess seditious articles even after the law is passed, depending on whether the holder has a “reasonable excuse”. Once the law is passed, the Hong Kong authorities could criminalise the exercise of basic rights in the name of national security and suppress the voices of the pro-democracy camp.

Critics, including the US and UK governments, have said that the new Article 23 legislation will further narrow the freedoms of Hong Kong as a global financial centre, as many of the regulations and definitions are too broad and vague. The US State Department said in a statement in February this year that broad and vague definitions of “state secrets” and “outside interference” could be used to create fear of arrest and detention to stifle dissent. Currently, Western countries are closely watching the progress of the Article 23 legislation, which after all has the potential to affect the impact of foreign nationals, investments and company operations in Hong Kong. Once the Article 23 legislation is passed, more vaguely-defined provisions of national security laws with extraterritorial effect will further undermine the “one country, two systems” framework. There is no turning back from China’s disengagement with the West.

There is also public opinion that, given the tense situation between China and the Philippines, the Taiwan Strait, and especially the conflict between China and the Philippines in the South China Sea, and the heightened risk of war, Beijing wants Hong Kong to enact Article 23 as soon as possible, so as to prevent Hong Kong from becoming a “military loophole” in the South China Sea. Of course, there is no empirical evidence to show that there is any direct relationship between the legislation and the military conflict, except that the stability of Hong Kong will surely be favourable to the development of the Chinese Communist Party in various fields, and “protect” the Chinese Communist Party’s regime.

The Hong Kong National Security Law is already very powerful.

After the implementation of the Hong Kong National Security Law in 2020, it is obvious that Hong Kong is no longer the same as before. For more than three years, Hong Kong has been devoid of a media that criticises the government. The Apple Daily, which was seen as a promoter of pro-democracy protests, has ceased publication, and its top executives have all pleaded guilty and acted as prosecution witnesses in the trial of its president, Lai Chi-ying. The Internet media, which were accused of fuelling the rumour, are no longer in operation, and only a handful of Internet celebrities continue to discuss Hong Kong’s political situation overseas. Those who are still promoting democracy in Hong Kong, and those who are still discussing the government, are no longer as passionate as they used to be, but only provide some interpretations of things, and refuse to comment, and at the same time, their viewers have dropped significantly. Even personal opinions on social media platforms have been prosecuted as seditious, and Hong Kong people simply do not even discuss politics among friends.

It can be said that Hong Kong people prefer not to speak in the face of the situation.

Street demonstrations and protests against the government are no longer seen, and the Hong Kong government has claimed that it is now “moving from chaos to governance” and is beginning to “move from governance to prosperity”. In the Legislative Council, there are no dissenting voices against the government’s administration, and basically no motion that requires much discussion, amendment or rejection. Many civic groups and political parties that have existed for decades, such as the Hong Kong Professional Teachers’ Union, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, the Scholarism Movement, and the Civic Party, have been disbanded. It can also be said that those organisations that may hold opposing views to the government’s policies and that may be trying to disseminate or organise opposition voices in the community have been disbanded. It can be said that there is no more room for “endangering national security” in Hong Kong today.

So, what will be the effect of enacting legislation to implement Article 23 of the Basic Law?

Further Control of Thought and Speech

A careful analysis of the Hong Kong National Security Law and the Maintenance of National Security Bill reveals a fundamental difference. The former is a law enacted by China to be enforced in Hong Kong, covering the behaviour of anyone in the world, and has been challenged by Western societies for including anyone in the world. The latter divides its jurisdiction into three categories of people. Firstly, foreigners who have no direct connection with Hong Kong, and who are not mentioned in the Bill, apparently giving foreign governments no reason to criticise. The second category is residents of the SAR who are Chinese nationals, most of whom are living in Hong Kong, and they are naturally the target of the Bill. However, the third group are SAR residents who do not care where they live, and whose behaviour and speech outside Hong Kong are very often governed by the Bill. This is a matter of concern, especially for those born in Hong Kong who have emigrated to overseas countries.

All along, Hong Kong-born people have been given the right of abode to enter and leave Hong Kong freely, irrespective of where they have emigrated to or which nationality they have acquired. The identity card issued by the Hong Kong government is regarded as a document for travelling to and from Hong Kong, not a nationality declaration, and only a small number of people will voluntarily declare to the Hong Kong government that they have given up their right of abode in Hong Kong, but these people are regarded as permanent residents of Hong Kong with Chinese nationality. The number of such people in Australia is believed to be more than 100,000 people.

After the passage of the Bill, it is very likely that these people will be subject to the extraterritorial jurisdiction of the Bill, that is, if their words or behaviour expressed in Australia are regarded as having violated the Bill, they may be regarded as having violated the law and be subject to criminal liabilities when they return to Hong Kong. It can be said that for these Hong Kong immigrants, once they no longer return to Hong Kong or formally apply to Hong Kong to give up their right of abode, they will have to consider whether their remarks or behaviour in Australia have contravened the Bill.

Not only Hong Kong people in Australia, but also Hong Kong people in the diaspora all over the world are facing the same situation. Is this a kind of restriction on the speech and behaviour of these people? It can be said that these are some of the responses after the publication of the Bill. Some people think that the Australian government should confirm with the Hong Kong government whether this is the intention of the Bill, or to remind Hong Kong people that they should carefully consider giving up their Hong Kong permanent resident status.

If the Hong Kong government does not make this clear, or confirms that this is really the result, it is very likely that Hong Kong people overseas will be careful with their words, which is in fact a kind of threat to the freedom of speech. In any case, the passage of the Bill will probably trigger a new wave of emigration of Hong Kong people, or fewer foreigners will be willing to come to Hong Kong to work or travel, and it can be said that this may not necessarily bring positive consequences to Hong Kong.

Article/ translated from Issue 701, Editorial Department, Sameway Magazine

Photo/Internet