On Tuesday March 19, The Legislative Council of the Hong Kong Special Administrative Region passed the ‘Safeguarding National Security Bill’ unanimously, 11 days after its introduction.
One country, two systems
To understand the significance of the new bill, it is first important to grasp the "One country, two systems" principle (OCTS). OCTS describes the constitutional principle of People’s Republic of China (PRC) governance of Hong Kong.
Developed by then paramount leader Deng Xiaoping, the concept, in the simplest terms, suggests that while there would be only one Chinese nation, regions such as Hong Kong and Macau would maintain their governmental, legal, and economic systems independently from mainland China’s.
What is ‘Article 23’?
The 'Safeguarding National Security Bill', often referred to as 'Article 23', is the implementation of Article 23 of Hong Kong’s organic law, the 'Basic Law'.
Enacted under the Constitution of China, Hong Kong’s 'Basic Law' came into effect in 1997 when Hong Kong was famously handed over to China.
Article 23 of the Basic Law “requires the Hong Kong Special Administrative Region (HKSAR) to ‘enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government.’ It also deal with issues of state secrets and the activities of foreign political organisations in Hong Kong,” wrote Hong Kong legal scholar Albert Cheng Hung-yee in 2003.
Back then, Hong Kong authorities first introduced a 'National Security Bill', but it was put on hold after widespread public outcry and peaceful protesting.
However, when public dissent and frequent, vehement anti-government protests erupted in 2019 over an extradition bill, the Standing Committee of the National People's Congress in mainland China ultimately passed a 2020 National Security Law (NSL) to be imposed on Hong Kong.
“From a Western perspective, the NSL is a clear intrusion by the PRC government into law-making in Hong Kong,” writes scholar Chao Wang in an article for Cambridge University Press’s journal, Global Constitutionalism.
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So, what is happening with this new bill?
Since the NSL of 2020, authorities have already imprisoned multiple political opponents, writes CNN.
The new ordinance, this time passed by Hong Kong’s own legislative council, introduces 39 new crimes including, according to the BBC, legislation against “external interference” and “insurrection”.
The new law also implements harsh punishments against espionage using broad definitions of “state secrets” to include things concerning "major policy decisions" and "economic or social development".
Another significant element of the law is the legislation around “seditious intentions”.
According to the Asia director at Human Rights Watch Elaine Pearson, “Now even possessing a book in Hong Kong critical of the Chinese government can mean years in prison.”
In summation, the legislation, through vague terminology and broad categorization, essentially has intensified the ability of Hong Kong and Chinese authorities to limit and punish free speech, organization, and - especially - dissent in the name of national security.
Reactions
The Safeguarding National Security Bill has been met with skepticism across the Western world. In a press release on Tuesday, Nabila Massrali, Spokesperson for Foreign Affairs and Security Policy at the Council of the EU wrote, “The European Union is concerned about this legislation’s potential impact on the rights and freedoms of the people of Hong Kong.”
She further elaborated: “The bill’s sweeping provisions and broad definitions, specifically in relation to foreign interference and state secrets, appear as particular concerns. The significantly increased penalties provided for in the Bill, its extraterritorial reach and its - at least partial - retroactive applicability are also deeply worrying.”
Meanwhile, in a press briefing from the US Department of State, Principal Deputy Spokesperson Vedant Patel stated that, “We believe that these kinds of actions have the potential to accelerate the closing of Hong Kong’s once open society.”
He continued, “We’re alarmed by the sweeping and what we interpret as vaguely defined provisions laid out in their Article 23 legislation. We think that this was fast-tracked through the nondemocratically elected legislative council after a truncated public comment period. We also believe that a lot of the phrasing and crimes that are outlined are poorly defined and incredibly vague. They use phrases such as external interference, which is incredibly vague.”
The NGO Human Rights Watch also took issue with the bill, stating, “The Safeguarding National Security Ordinance punishes peaceful speech and civil society activism with heavy prison sentences, expands police powers, and weakens due process rights. Because provisions apply to Hong Kong residents and businesses anywhere in the world, the law can silence dissent both in the city and globally.”