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Hong Kong Basic Law Article 23 'National Security Law'

Updated: Apr 17, 2020

Not for the first time in Hong Kong we are hearing noises about "Article 23", but what is the purpose of this legislation and who wants it?

Source: Wikipedia

Article 23 of the 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 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."

Before 1997, the British colonial government introduced the Crimes (Amendment)(No.2) Bill 1996 in an attempt to concretise the concepts of "subversion" and secession" by confining them to actual violent conduct but of no avail. It failed as it was strongly opposed by Beijing and thus left a vacuum in the present legislation.

2003 National Security Bill

In February 2003, the HKSAR government proposed the National Security (Legislative Provisions) Bill 2003 to the Legislative Council (LegCo) which aimed to amend the Crimes Ordinance, the Official Secrets Ordinance and the Societies Ordinance pursuant to the obligation imposed by Article 23 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and to provide for related, incidental and consequential amendments. The proposed bill caused considerable controversy in Hong Kong and a massive demonstration by 500,000 protesters on 1 July 2003. In the aftermath, Liberal Party chairman James Tien resigned from the Executive Council and the bill was withdrawn after it became clear that it would not get the necessary support from the Legislative Council for it to be passed. The bill was then shelved indefinitely.

Hong Kong must not delay national security law, central government adviser says

Source: SCMP 21 December 2019

Hong Kong must not delay the introduction of a national security law, a central government adviser warned on Saturday, adding that it also needed to do a better job implementing its existing laws.

Wang Zhenmin, director of Tsinghua University’s Centre for Hong Kong and Macau Research, told a seminar in Beijing, that it was now an essential task for the city to put Article 23 legislation on the agenda.

The legal scholar was referring to a clause under the Basic Law, Hong Kong’s mini-constitution, which stipulates that the city must enact its own national security law - a proposal that prompted mass protests in 2003.

Wang was speaking a day after President Xi Jinping praised Macau for making efforts to protect national security - remarks that were widely interpreted as an indirect but obvious “to-do” list for Hong Kong.

Macau saw no large-scale protests when it enacted its national security law in 2009, unlike in Hong Kong six years previously, when the government abandoned the plan after half a million people took to the streets

Under Article 23 of the Basic Law, national security laws should prohibit seven types of activity: treason, secession, sedition, subversion against the central government, theft of state secrets, the hosting of political activities by foreign political organisations or bodies, and the establishment of ties between local and foreign political organisations.

Wang said five types of behaviour were already covered by existing Hong Kong law, but did not specify what these were.

He said that in these cases the “issue is about implementation”, but called on the Hong Kong government to take the lead in addressing the other two areas.

Wang Zhenmin urged the city government to take the lead.

“There are calls that the central government should [step in and] legislate for the two remaining types of behaviour,” said Wang.

“But since it is stipulated in the Basic Law that the Special Administrative Region government has the power to legislate, our view is that the SAR government should do its best to complete the legislative work first.”

He continued: “The central government also has its responsibilities so [we need to] work together on this.”

Three years ago, Hong Kong’s former justice minister Elsie Leung Oi-sie argued that all seven activities could be covered by existing ordinances, which could be gradually amended to enact Article 23.

The seminar was organised by Global Times, a tabloid affiliated to the Communist Party’s mouthpiece People’s Daily.

Other speakers included Tam Yiu-chung, a pro-Beijing politician from Hong Kong, and Wei Jianguo, a former vice-minister of commerce.

The full-day seminar covered not only the past six months of social and political unrest in Hong Kong - triggered by a now withdrawn bill to allow the extradition of criminal suspects to the mainland - but also relations with the US, Taiwan and the rise of populism worldwide.

In his comments, Wang also blamed the Hong Kong government for failing to build up its authority since the 1997 handover.

“The [SAR] government is not as authoritative [as the colonial government] before the handover,” he said. “But this is not a constitutional problem. The Basic Law has inherited the fine traditions of the political system before the handover but the chief executives have made the SAR government weak.

“To build the SAR government’s authority, all [you need to do] is to strictly implement the law.” Wang said the law gave the chief executive, the city’s top official, extensive powers, but many of these had not been “put to good use”. Another speaker Jiang Shigong, a professor at Peking University, said that while Beijing had limited leeway in dealing with Hong Kong, it needed to adopt a more authoritative stance. He said that because Article 23 covered national security, it was a matter that concerned the central government, but the legislation was the city government’s responsibility.

“Back in the colonial times, it was London that made the decisions,” Jiang said. “[After the handover], the SAR government took up the burden of making political decisions but it turned out that the civil servants had no idea how to make such decisions because they have been taking orders [for all these years].”

Jiang said the central government “can only give very general directions and point out [the current situation] is the result of some deep-rooted problems, but the Hong Kong government doesn’t even understand what those deep-rooted problems are”.

To improve governance he said Beijing had to “take up this responsibility in laying out very specific instructions” for the city’s government to follow.

The Spectre of Article 23 Returns :

Source: EJI Insight, 2nd January, 2020

The ghost of Article 23 is back to haunt Hong Kong – and politically damaged Carrie Lam is likely to be given the task to push the controversial national security law through the Legislative Council.

In recent weeks, Beijing has been vocal in its intention to have Article 23 back on Hong Kong’s political agenda. President Xi Jinping and other leading mainland officials, including the Hong Kong and Macao Affairs Office director Zhang Xiaoming, have repeatedly said that Hong Kong urgently needs this, to prevent a repeat of the protests of 2019.

In the LegCo election in October [2020], the pro-government side may lose its majority. So it is urgent to pass the law before the election. It would be better for LegCo to pass it, however bitter the debate, than for the National People’s Congress to issue a ruling implementing a national security law here. Lam does not have the will or ability to refuse this demand of Beijing.

The next few months will be crucial as the current legislature winds down for the election. Will Beijing risk unleashing more public wrath in Hong Kong, or does it believe Article 23 will be a powerful deterrent to keep people from the streets?

During celebrations to mark the 20th anniversary of Macao’s handover in late December, Xi and other top officials made it clear why they considered the Macau SAR such a success – its national security law, “patriotic education” and the fact that the leaders of its executive, legislature and judiciary are all “patriots”.

A national security law in Hong Kong would resemble that of Macao, which took effect on March 2009 and prevents it becoming “a base to subvert China”, to use the official parlance.

The Macao National Security Law prohibits and punishes acts of “treason, secession and subversion” against the central government, as well as “preparatory acts” leading to any of the three acts. Some of the outlined offences carry a maximum penalty of 25 years in jail. The law also prohibits foreign political organizations from conducting political activities in the SAR and prohibits organizations in the territory from establishing ties with foreign bodies.

In 2003, the Hong Kong government proposed a bill to enact such law. It caused a great controversy and a protest demonstration by around half a million people on July 1 that year. Since then, the government has not reintroduced the bill.

If it is taken up again now, the bill would address what Beijing leaders believe to be the root cause of the 2019 protests – foreign interference by the US, Taiwan and other entities. Beijing wants to outlaw links between NGOs and civic groups in Hong Kong and those abroad who support them.

In his public speeches in Macao, President Xi did not refer to Hong Kong – but the policy direction is obvious. It must do the same as Macao.

Is the passing of Article 23, then, to be the final responsibility for Chief Executive Carrie Lam before she is dismissed?

There are two pressing reasons for this. One is that the law is so toxic in Hong Kong that any candidate to replace her will decline the post if passage of the bill is a condition for accepting. Lam’s approval ratings are so low that they will never recover.

A poll published in late December by the Hong Kong and Asia Pacific Research Centre found 22.2 percent approved her performance, down from 52.7 percent in December 2018. That of Security Secretary Theresa Cheng was even lower, at 15.9 percent, down from 39.3 percent.

So why not give the stricken horse a final burden before putting her out to pasture?

The other reason is that the pro-government parties still have a majority in the Legislative Council, with 43 of the 70 seats. The Democrats have 22, with two others and three seats vacant.

The next vote for all 70 seats will be in September 2020, with 35 from geographic constituencies (GC) and 35 from functional constituencies (FC). If the result of the November District Council is repeated, the pro-government parties could lose nearly all their seats in the GCs; many of those returned to the FCs are also likely to be hostile to Article 23.

Hence, Beijing would want to get the bill through LegCo before October.

In his public comments to Carrie Lam in Beijing during her visit in December, Xi said that he fully supports her government and that the priority is to end the violence and restore order.

He said not a word about the District Council elections, amnesty for young protesters, or an independent inquiry into the violence, and also did not mention universal suffrage or political reform. He addressed none of the issues Hong Kong people have been demanding for seven months.

For Xi, what is going on in Hong Kong is a law and order issue, and a National Security Law is necessary to prevent a recurrence.

In the atmosphere of xenophobia and insecurity, an order to Lam to pass the controversial legislation looks entirely plausible.


References & updates:

  1. RTHK 16 April 2020 "Human rights group rejects Article 23 proposal"

  2. RTHK 15 April 2020 "Violence, hate speech threaten national security: CE"

  3. RTHK 15 April 2020 "HK needs new national security laws: liaison chief"

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