Written by Adam Lee for the Hong Kong Politics/ Legal Issues Section.
The role Article 23 has is questionable; its role regarding Hong Kong's relations with Beijing throws it further into question. Adam Lee examines this complexity in this article.
Introduction
30 June 2020 — a date that will be ingrained in Hong Kong’s public conscience for generations to come. That was the day that the People’s Republic of China (PRC) imposed the National Security Law (NSL) on Hong Kong, a controversial piece of legislation which granted sweeping state powers spelling an extreme crackdown on political opposition.[1] As the events of the 2019-20 protest movement begin to fade into the history books, attention has turned towards Chief Executive John Lee’s vow to introduce a new national security bill through the territory’s own legislature.[2]
While the basis to pass the existing NSL can be traced to Article 18 of the Basic Law (the competency of the PRC to “add to or delete from the list of laws in Annex III…[which are] confined to those relating to defence and foreign affairs”), the new, proposed bill represents the government’s renewed attempt to fulfil Article 23 after it shelved a proposal in 2003 in response to mass demonstrations.[3] Article 23 provides that Hong Kong “shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government”.[4] But what makes this homegrown effort to strengthen the government’s model of national security particularly controversial? And what could it mean for Hong Kong and its people?
The worrying political and legislative context
The Basic Law, a mini-constitution which was officially implemented in 1997 at the handover of the former colony from the United Kingdom to the PRC, enshrines the “one country, two systems” principle. In essence, this guarantees a special level of autonomy for Hong Kong until 2047.[5] And yet, the context surrounding the new bill is perhaps no better illustration of Beijing’s tightening control over Hong Kong and the resulting erosion of self-determination and democracy. Firstly, John Lee, the incumbent leader of the Hong Kong government, was appointed after being the sole Beijing-approved candidate for the 2022 election.[6] Then, upon assuming office, Lee chose Paul Lam to serve as the Secretary of Justice, who heads the Department of Justice responsible for drafting bills.[7]
In addition, the new bill is set to be adopted by the Legislative Council, its membership having been decided in a 2021 election that was conducted under Beijing-enacted reforms.[8] Receiving widespread criticism from the international community, as well as leading to boycotts from pro-democrats, the proportion of directly-elected representatives in the Legislative Council was slashed from 50% to 22% of seats, the latter constituting 20 out of 90 seats.[9] Even then, the pro-democracy bloc stood with narrow chances of securing the 20 possible seats – 47 legislators and activists who organised and participated in primaries to select their candidates were arrested and indicted with conspiracy to subvert power under the 2020 NSL.[10] On the face of it, the enactment of a new national security law does not seem geared towards representing the views of the Hong Kong people.
The Vice-President of the European Commission spoke on behalf of the EU, mincing no words in labelling the election cycle as a “violation of democratic principles and political pluralism”.[11] The disconcerting circumstances and consequences of this historic election give a clear indication of an increasing alignment – even consolidation – of Hong Kong and the PRC’s political institutions and the public officials who shape them. The new bill will surely reflect this goal that necessarily entails eradicating any remaining pro-democracy undercurrents.
Forecasting the new bill and its impact
Undoubtedly, there is an overlapping between the crimes covered by the existing NSL – namely, secession, subversion, acts of terrorism, and collusion with foreign forces – and the scope of Article 23 for the new bill.[12] However, Article 23 is arguably wider in scope since it refers to treason, theft of state secrets and the prohibition of foreign political organisations and bodies from conducting political activities in Hong Kong or establishing ties with local political groups.[13] This difference in terminology that augments existing criminal legislation could grant the authorities a greater latitude to prosecute and convict on thinly-veiled political grounds of threats to national security. In a similar vein, since a focus on espionage is alleged to be a top priority on the governmental agenda, the enforcement of a new law could aid in the PRC government’s counterintelligence activities.[14] Finally, this more expansive terminology could create a ripe opportunity to refresh the law by extending the applicability of offences or refining ways to delay hearings as much as possible.
Eric Lai, a research fellow at Georgetown Center for Asian Law, also draws attention to how the term “local political groups'' could be weaponised by the state to target religious organisations.[15] Through taking advantage of a dubious or ambiguous interpretation of what amounts to a political organisation, this provides a pathway for the government to curtail the right of anyone in Hong Kong to exercise their freedom to manifest their religion or belief.[16] Indeed, Cardinal Joseph Zen and fellow Catholics had led the opposition against the government’s unsuccessful attempt to introduce legislation pursuant to Article 23 back in 2003.[17] A suppression of religious freedom would certainly correspond with the Chinese Communist Party’s atheistic stance and its widely reported programme of religious persecution.[18]
Beyond the effects on local citizens, the unknowability of what may constitute “state secrets” could prove to be a concern for international businesses, who may be forced to confront new challenges related to disclosure obligations. Wary of the possibility of vaguely defined legislation, some companies have already been prompted to move their seat of arbitration out of Hong Kong.[19] Equally, this signifies diminishing trust in the region’s judicial independence and impartiality. In this way, the invocation of Article 23 could send Hong Kong further along on its decline from a previously uncontested status as Asia’s financial capital.
Conclusion
Amid what little information has been made publically available on the substance of the new proposals to implement Article 23, political commentators will need to keep a sharp eye on government press releases and public addresses. However, a breadcrumb trail of democratic backsliding and crumbling autonomy suggests this could have resounding implications from various political, religious and commercial perspectives, in turn posing threats to the rule of law and human rights. While being paraded as an endeavour to promote national security through the local legislative process, the new bill is very likely to represent the next step in Beijing’s progressive plans to strip any vestige of autonomy that Hong Kong retains over its own legacy, governance, and future.
References
[1] Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (2020) (NSL); Helen Davidson, ‘Closing arguments begin in trial of Hong Kong pro-democracy activists’ The Guardian (London, 29 November 2023) <https://www.theguardian.com/world/2023/nov/29/closing-arguments-begin-in-trial-of-hong-kong-pro-democracy-activists> accessed 18 January 2024; Brian Wong, ‘Jimmy Lai trial: timeline of Hong Kong media mogul’s arrests, charges and court appearances’ South China Morning Post (Hong Kong, 18 December 2023) <https://www.scmp.com/news/hong-kong/law-and-crime/article/3245501/jimmy-lai-trial-timeline-hong-kong-media-moguls-arrests-charges-and-court-appearances> accessed 18 January 2024.
[2] Tom Grundy, ‘Chief Exec. John Lee defends need for new security law; says Hongkongers understand why after 2019 unrest’ Hong Kong Free Press (Hong Kong, 26 October 2023) <https://hongkongfp.com/2023/10/26/chief-exec-john-lee-defends-need-for-new-security-law-says-hongkongers-understand-after-2019-unrest/> accessed 18 January 2024.
[3] ibid.
[4] Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Basic Law), arts 18 and 23.
[5] Explanations on “The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Draft)” and Its Related Documents, Chapter I.
[6] Cao Li and James T Areddy, ‘Hong Kong Committee Confirms Ex-Policeman John Lee as Next Chief Executive’ The Wall Street Journal (New York City, 8 May 2022) <https://www.wsj.com/articles/hong-kong-committee-confirms-ex-policeman-john-lee-as-next-chief-executive-11652009425> accessed 18 January 2024.
[7] ‘Principal Officials of Sixth-term HKSAR Government appointed’ (Government of Hong Kong, 19 June 2022) <https://www.info.gov.hk/gia/general/202206/19/P2022061900202.htm> accessed 18 January 2024.
[8] Emma-Graham Harrison, ‘Beijing cuts Hong Kong's directly elected seats in radical overhaul’ The Guardian (London, 30 March 2021) <https://www.theguardian.com/world/2021/mar/30/hong-kong-china-brings-in-voting-system-changes> acccessed 18 January 2024.
[9] ibid; ‘Hong Kong: Statement by HR/VP Josep Borrell on the Legislative Council Election held on 19 December 2021’ (European External Action Service, 20 December 2021) <https://www.eeas.europa.eu/eeas/hong-kong-statement-hrvp-josep-borrell-legislative-council-election-held-19-december-2021_en> accessed 19 January 2024.
[10] Candice Chau, ‘47 democrats charged with ‘conspiracy to commit subversion’ over legislative primaries’ Hong Kong Free Press (Hong Kong, 28 February 2021) <https://www.independent.co.uk/news/hong-kong-detains-47-activists-on-subversion-charges-police-hong-kong-activists-activists-law-b1808636.html> accessed 19 January 2024.
[11] European External Action Service, n 10.
[12] Eric Lai, ‘Will Hong Kong’s National Security Law safeguard or harm its citizens?’ (East Asian Forum, 6 January 2024) <https://www.eastasiaforum.org/2024/01/06/will-hong-kongs-national-security-law-safeguard-or-harm-its-citizens/> accessed 19 January 2024.
[13] Basic Law, art 23.
[14] Sophie Reiß, ‘More bad news for what’s left of Hong Kong’s rule of law’ (MERICS, 3 Febuary 2023’ <https://merics.org/en/comment/more-bad-news-whats-left-hong-kongs-rule-law> accessed 19 January 2024.
[15] Lai, n 13.
[16] Hong Kong Bill of Rights Ordinance Cap 383, art 15(1).
[17] Thomas Chan, ‘Who is Cardinal Joseph Zen? Hong Kong’s turbulent priest preaches love amid legal woes’ Hong Kong Free Press (Hong Kong, 26 November 2022) <https://hongkongfp.com/2022/11/26/cardinal-joseph-zen-hong-kongs-turbulent-priest-preaches-love-amid-legal-woes> accessed 19 January 2024.
[18] ‘10 things to know about China’s policies on religion’ (Pew Research Center, 23 October 2023) <https://www.pewresearch.org/short-reads/2023/10/23/10-things-to-know-about-chinas-policies-on-religion/> accessed 19 January 2024.
[19] Dennis WH Kwok and Elizabeth Donkervoort, ‘The Risks for International Business under the Hong Kong National Security Law’ (2021), 2 <https://ash.harvard.edu/publications/risks-international-business-under-hong-kong-national-security-law> accessed 18 January 2024.
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