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Safeguarding National Security Ordinance

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This article is about Hong Kong local legislative bill for national security. For the Chinese national law applied to Hong Kong, see Hong Kong national security law. For the failed 2003 bill, see National Security (Legislative Provisions) Bill 2003.
Safeguarding National Security Bill
Legislative Council of Hong Kong
  • A Bill to improve the law for safeguarding national security in the Hong Kong Special Administrative Region of the People’s Republic of China; and to provide for related matters
Territorial extentHong Kong
Worldwide (extra-territorial for some offences)
White paperPublic Consultation on Basic Law Article 23 Legislation
Legislative history
Introduced bySecretary for Security
Chris Tang
Introduced8 March 2024 (2024-03-08)
First reading8 March 2024 (2024-03-08)
Summary
To comprehensively address the national security risks at present and those that may emerge in the future in Hong Kong and to fully implement the constitutional duties and obligations as stipulated under Article 23 of the Basic Law, the 5.28 Decision and the Hong Kong National Security Law
Status: Pending

The Safeguarding National Security Bill (Chinese: 維護國家安全條例草案)[1] is a proposed bill for national security published by the Government of Hong Kong on 8 March 2024, and introduced to the city's Legislative Council the same day after a 30-day consultation period. The bill was made under the requirement of the Article 23 of the Hong Kong Basic Law.[2][3]

Background

Article 23

Main article: Hong Kong Basic Law Article 23

Article 23 of the Hong Kong Basic Law (BL 23) states:

The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the PRC 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.[4]

An attempt at enacting legislation to satisfy the requirements in Article 23 was made in 2003, but was shelved indefinitely after hundreds of thousands of protestors demonstrated against it, resulting the pro-Beijing Liberal Party opposing the bill and the subsequent lacking of a majority to pass.

Xi Jinping's accession to General Secretary of the Chinese Communist Party, the top position in November 2012, marked a more hardline authoritarian approach, most notably with the construction of Xinjiang internment camps. The spectre that Hong Kong may similarly be brought to heel became an important element in the democratic protests.[5]

While Beijing imposed a national security law on Hong Kong in 2020, it does not cover all BL 23 offenses, and Article 7 of that law requires Hong Kong to "complete, as early as possible, legislation for safeguarding national security as stipulated in the Basic Law of the Hong Kong Special Administrative Region".[6]

Carrie Lam government

After the national security law was imposed, Chief Executive Carrie Lam pledged to conduct as much preparatory work as possible, but noted that the administration might not be able to complete the legislation by the end of its current term. In March 2021, the Chinese Communist Party initiated electoral overhaul that plans to ensure only "patriots" may run for office and excludes political opposition. Six months later, Security Secretary Chris Tang said the time had never been so "ripe" to relaunch the bill as the public had witnessed "lawlessness" and acts "endangering national security" in the 2019 protest. Tang also said the bill would focus on countering state-level spying activities, and expressed his confident that the Article 23 bill will not meet as much resistance as in 2003.

Following the election that saw pro-government members capturing nearly all seats, the new legislature convened the first session in January 2022, during which Carrie Lam confirmed "local legislation" will be drafted that meets Article 23 to outlaw new national security crimes.[7][8] Tang revealed that the government aims to launch a public consultation by the end of the term of the current administration in late June, and table the draft to the parliament in the second half of the year.[9] However, no significant progress was made, and Carrie Lam announced her intention to stand down without seeking re-election three months later. John Lee, the Chief Secretary, was subsequently endorsed by Xi Jinping's administration to be her successor.

John Lee government

Unveiling his manifesto in April 2022, John Lee pledged to enact the Article 23 bill to fulfill the constitutional responsibility of legislation as part of improving governance.[10] After elected as the Chief Executive by the 1,461-member committee, he said the legislative agenda would be pushed forward "at the right time" and rejected prioritizing political reform.[11] But in his first Policy Address in October there is no mention of the timeframe for Article 23 bill.[12]

In July 2023, six months after the post-pandemic reopening of Hong Kong, John Lee confirmed the schedule had been formulated and Article 23 bill will be enacted no later than 2024.[13] The government submitted the annual legislative programme to the Legislative Council on 12 January 2024, showing that the "Safeguarding National Security Bill" is slated to be introduced within the 2024 legislative session.[14] Media sources claimed the government's target is to finish all legislative work before the summer recess of the parliament.[15]

Consultation

The Government commenced the consultation for the proposed legislation on 30 January 2024, lasting for four weeks until 28 February. During the last attempt in 2003, the consultation period was three months. John Lee defended the time period as appropriate, and stated that the community has reached a consensus on the legislation of Article 23 and should be enacted as soon as possible.[16] Regina Ip, who failed to push for the 2003 bill as Security Secretary, said the long consultation had provoked many negative reports.[17]

BBC reported that many of the public was muted on the legislation, with some dedicated the situation to the chilling effect after the 2020 national security law. Ip, now the convenor of Executive Council, said other issues such as solid waste charging gathered more public attention.[17]

Describing that the legislative agenda received majority support from the public, the authorities received 13,147 submissions with 98.64% support. Amongst the 0.71% that objected, over 10 were from overseas anti-China organisations or absconders as the authorities claimed.[17]

On 5 March the Legislative Council announced a joint meeting of Article 23 subcommittee and two panels would be held tomorrow, prompting MPs who were attending the annual Two Sessions congress meeting rushed back Hong Kong, while John Lee also ended his Beijing trip a day earlier than expected. Sources quoted by the media said the "unusual" arrangement was made as the government intended to enact the legislation by National Security Education Day on 15 April.[18]

The officials presented the result of the consultation in the joint meeting, highlighting that the legislation received widespread support. Some comments presented in the consultation document suggested a ban on social media including Facebook, YouTube, Telegram and Signal from operating in Hong Kong, which were said to be hotbeds of crime for dissemination of seditious information.[19] Paul Lam, Secretary for Justice, clarified the authorities had no plan to prohibit the social media platforms, after a Bloomberg report stated "HK says Telegram [and Signal] should be prohibited in Article 23 proposal". Hong Kong authorities condemned the report which generated "misunderstanding and panic" about Article 23 legislation.[20] Bloomberg later admitted error and retracted the news article.[21][22]

Content

Criminal offences

The bill includes five areas of national security crimes: treason, insurrection and incitement to mutiny, theft of state secret and espionage, sabotage, and external interference.[23] Treason, insurrection and sabotage, targeting acts that endanger the sovereignty of China and collusion with foreign forces in damaging public infrastructure may face up to life imprisonment. Some offences carry higher penalty if defendants colluded with an external force, such as providing unlawful drilling.[24]

Penalty for sedition, the colonial-era offence criticised as a catch-all offence, is proposed to increase to maximum 10-year imprisonment, up from the current 2-year. It also includes the new intention to cause hatred amongst different classes of residents of Hong Kong and China.[25] The bill also specifies that public disorder or violence is not the threshold for conviction, a day after the Court of Appeal delivered a similar judgement.[26] Officials also explained the public will need a "reasonable defence" to keep Apple Daily and other seditious publications at home, which carries a maximum penalty of three years.[27]

In accordance with the Article 23, foreign political bodies are covered in the bill as well. Security Secretary is empowered to prohibit operations of an organisation accused of external interference with bodies including foreign governments and political parties, as well as international organisations, on the basis of national security, if such organisations communicated with external force intended to cause interference. The bill also proposes criminalising making false statements implied to obscure an intent to cause interference with an external force, or to cause "mental pressure". Interfering with government, court, legislative, or electoral affairs by "improper means" through collaboration with external forces comes with a maximum sentence of 14 years in prison.[28] Concerns arose before consultation whether international advocacy groups such as Greenpeace and Amnesty International could be banned in Hong Kong.[29]

A person charged under three types of state secrets offences, i.e, unlawful acquisition, unlawful possession and unlawful disclosure, may invoke the defence that they had made "a specified disclosure", where the purpose of the disclosure is to reveal a threat to public order, safety, or health; that the government is not functioning lawfully; and where the "public interest served by making the disclosure manifestly outweighs the public interest served by not making the disclosure". Such provisions were not mentioned in the original legislative agenda,[30] and were introduced after the authorities accepted suggestions from the pro-Beijing members.[31]

Judicial procedures

Under the current rules, anyone arrested cannot be held for longer than 48 hours, after which the person must be released or charged. Authorities sought to extend the period a suspect can be held without charge to 14 days,[32] if such application is made within the initial 48-hour detention period and the magistrate is satisfied that the investigation cannot reasonably be completed.[33] Police may apply for a court warrant to stop a suspect from consulting a lawyer if it is believed that their doing so will endanger national security, and defendants can be restricted from meeting specific lawyers as well.[32]

For jailed national security offenders, unless the prison service was satisfied that their parole would not "be contrary to the interest of national security", existing early release schemes may not apply to the offenders. Under the Release under Supervision Scheme and the Pre-release Employment Scheme, an inmate who is jailed for more than three years can apply for early release after serving at least half or 20 months of their sentence.[34] The restriction will apply to the current offenders, including Tong Ying-kit, the first jailed national security prisoner. Even after serving the jail terms, the national security prisoners would be barred to run in elections for life.[35]

Targeting the exiled activists, the bill proposed enabling the authorities to impose a series of restrictions on the wanted individual, such as annulling their Hong Kong passport, prohibiting anyone from providing them with funds, suspending their professional qualifications, and removing their directorship of a company.[36]

Other provisions of the bill are: Introduction to cover the principles and interpretation of the Bill; Law enforcement powers and proceedings related to safeguarding national security; Maintaining national security mechanisms and related guarantees; Relevant amendments to other enactments.

Extraterritoriality

Debate

First reading

As the government insisted on speedy and fast-track debate, the Executive Council convened a special meeting on 7 March for consideration of the Safeguarding National Security Bill. Immediately after the urge from John Lee, President of the Legislative Council Andrew Leung also decided to convene an off-schedule special meeting on the next day solely for the bill, soon after it is expected to be revealed to the public. A senior legislator said it is uncommon for a bill to be gazetted and first read on the same day.[37] Leung said passing the bill is a historical mission.[38]

Bill Committee

After the bill was read the first time in the morning on 8 March, it was then sent to the bill committee in the afternoon for consideration. The committee discussed the new legislation in more than 40 hours of meetings spanning seven days, including rare weekend sessions.[39]

As pro-Beijing members described the bill as too lenient, the government presented amendments to the bill on the seventh day of deliberation, effectively making the bill tougher than its original draft.[39] They include scrapping a six-month wait until authorities can designate a wanted individual as an absconder, which allows authorities to levy sanctions any time after an arrest warrant is issued. Provisions that empowers the Chief Executive to consult Executive Council and make subsidiary legislation for "safeguarding national security" was added as well to "deal with unforeseen circumstances", with the maximum penalty set at 7-year imprisonment. A new clause was added specifying that the legislation also applies to "shadow organisations” that may consist of members of the organisation prohibited for endangering national security. The court may also grant anonymity orders to anyone linked to national security cases.[40]

Just 15 hours after presenting the amendments, 15 members of the bill committee unanimously approved moving the bill to the next stage.[39]

Second reading

With the bills committee finishing their meetings, the draft bill will now go to a full meeting of the legislature for discussion.[40]

Reaction

See Also

References

  1. ^ "Safeguarding National Security Bill to be introduced into LegCo for First Reading and Second Reading". www.info.gov.hk. Retrieved 8 March 2024.
  2. ^ "As it happened: Hong Kong Article 23 bill readings advance in Legco, with lawmakers set for marathon meetings over weekend to push forward legislation". South China Morning Post. 8 March 2024. Archived from the original on 9 March 2024. Retrieved 9 March 2024.
  3. ^ "Public consultation on Basic Law Article 23 legislation commences". The Government of the Hong Kong Special Administrative Region. 30 January 2024. Archived from the original on 1 March 2024. Retrieved 9 March 2024.
  4. ^ "Basic Law - Chapter 2". Hong Kong government.
  5. ^ Branigan, Tania; Kuo, Lily (9 June 2020). "How Hong Kong caught fire: the story of a radical uprising". The Guardian. Retrieved 2 July 2020.
  6. ^ Heung, Sammy (6 March 2024). "First draft of Hong Kong domestic security law will be unveiled soon, here's a look at a list of fears and concerns". South China Morning Post. Archived from the original on 9 March 2024. Retrieved 9 March 2024.
  7. ^ "Hong Kong to draw up own 'national security' law". Al Jazeera. Retrieved 15 March 2024.
  8. ^ AFP (12 January 2022). "Hong Kong to create more 'national security' crimes, Chief Exec. Carrie Lam says". Hong Kong Free Press HKFP. Retrieved 15 March 2024.
  9. ^ "Hong Kong to table Article 23 anti-subversion bill in second half of year". South China Morning Post. 26 January 2022. Retrieved 15 March 2024.
  10. ^ "Hong Kong's John Lee pledges to enact local security law". AP News. 29 April 2022. Retrieved 15 March 2024.
  11. ^ "李家超：上任後適時推動23條立法 政改不是優先項目". Yahoo News (in Chinese). 8 May 2022. Retrieved 15 March 2024.
  12. ^ "李家超首份施政報告多舉措攬才 未提香港23條立法時間表". BBC News 中文 (in Traditional Chinese). 19 October 2022. Retrieved 15 March 2024.
  13. ^ 中央通訊社 (22 June 2023). "李家超：基本法23條今年或最遲明年立法". The News Lens 關鍵評論網 (in Chinese). Retrieved 15 March 2024.
  14. ^ Lee, James (12 January 2024). "Hong Kong security law Article 23 to be discussed in Legislative Council this year". Hong Kong Free Press HKFP. Retrieved 15 March 2024.
  15. ^ "John Lee to lay down the law on article 23 consultation today". The Standard. Retrieved 15 March 2024.
  16. ^ Tse, Hans (30 January 2024). "Hong Kong begins public consultation for new, homegrown security law Article 23". Hong Kong Free Press HKFP. Retrieved 11 March 2024.
  17. ^ a b c "在香港討論《基本法》第23條立法是否已成公眾禁忌？". BBC News 中文 (in Traditional Chinese). 1 March 2024. Retrieved 11 March 2024.
  18. ^ Standard, The. "Finish line nears for Article 23 legislation". The Standard. Retrieved 15 March 2024.
  19. ^ Tse, Hans. "'No intention of banning social media,' Hong Kong officials say". hongkongfp.com. Retrieved 11 March 2024.
  20. ^ Tse, Hans (6 March 2024). "'No intention of banning social media,' Hong Kong officials say". Hong Kong Free Press HKFP. Retrieved 11 March 2024.
  21. ^ Tse, Hans (7 March 2024). "Bloomberg admits error as HK slams 'false reports' of social media ban". Hong Kong Free Press HKFP. Retrieved 11 March 2024.
  22. ^ "Hong Kong Consultation on Security Law Cited Communication Apps". Bloomberg.com. 6 March 2024. Retrieved 11 March 2024.
  23. ^ "香港特別行政區政府憲報". www.gld.gov.hk. Retrieved 8 March 2024.
  24. ^ Tse, Hans (8 March 2024). "HK proposes life sentences for treason, insurrection under new law". Hong Kong Free Press HKFP. Retrieved 11 March 2024.
  25. ^ Tse, Hans (8 March 2024). "HK proposes raising maximum penalty for sedition to 10 years". Hong Kong Free Press HKFP. Retrieved 11 March 2024.
  26. ^ Lee, James (7 March 2024). "HK DJ loses bid to appeal 'seditious' speech conviction & jail term". Hong Kong Free Press HKFP. Retrieved 11 March 2024.
  27. ^ Tse, Hans. "Article 23: 'Reasonable defence' needed for keeping 'seditious publications'". hongkongfp.com. Retrieved 11 March 2024.
  28. ^ Lee, James (8 March 2024). "HK proposes dissolving organisations accused of 'external interference'". Hong Kong Free Press HKFP. Retrieved 11 March 2024.
  29. ^ "聞風筆動：23條立法農曆新年前推 國家機密定義參照內地／文：李先知 - 20240124 - 觀點". 明報新聞網 - 每日明報 daily news (in Traditional Chinese). Retrieved 11 March 2024.
  30. ^ "23條立法｜「國家秘密」擬加入「公眾利益」相關免責辯護". Yahoo News (in Chinese). 6 March 2024. Retrieved 11 March 2024.
  31. ^ Chan, Irene (1 February 2024). "Hong Kong to consider 'public interest' exemption for leaks of 'state secrets'". Hong Kong Free Press HKFP. Retrieved 11 March 2024.
  32. ^ a b Chan, Irene. "HK proposes limiting national security detainees' access to lawyers". hongkongfp.com. Retrieved 11 March 2024.
  33. ^ Grundy, Tom. "HK mulls 2-week detention without charge for nat. sec. suspects". hongkongfp.com. Retrieved 11 March 2024.
  34. ^ Ho, Kelly (8 March 2024). "HK may raise early-release threshold for national security prisoners". Hong Kong Free Press HKFP. Retrieved 11 March 2024.
  35. ^ "拆解23條｜國安定罪者失立法會、區議會參選權 前區議員：港版「剝奪政治權利終身」". Photon Media (in Chinese (Hong Kong)). 8 March 2024. Retrieved 11 March 2024.
  36. ^ Ho, Kelly. "HK proposes cancelling 'absconders' passports under new law". hongkongfp.com. Retrieved 11 March 2024.
  37. ^ "全速立23條 今刊憲首同日首讀 立會加會在京議員趕返 有預料下月可通過 - 20240308 - 要聞". 明報新聞網 - 每日明報 daily news (in Traditional Chinese). Retrieved 15 March 2024.
  38. ^ Hutton, Mercedes. "HK to introduce homegrown security law to legislature on Friday". hongkongfp.com. Retrieved 11 March 2024.
  39. ^ a b c "Hong Kong's Article 23 bill moves to next stage after amendments toughen law". South China Morning Post. 14 March 2024. Retrieved 15 March 2024.
  40. ^ a b Leung, Hillary (14 March 2024). "Article 23: Hong Kong proposes amendments to new security law". Hong Kong Free Press HKFP. Retrieved 15 March 2024.

External Links

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