Report: Balancing National Security and the Rule of Law: Article 23 of the Hong Kong Basic Law

1 November 2018

National security concerns must not justify erosion of rule of law in Hong Kong, new academic report warns that Article 23 could harm Hong Kong as a business hub

On 1 November 2018, London-based human rights watchdog Hong Kong Watch published an in-depth report warning that national security concerns must not be used to justify the erosion of human rights and the rule of law in Hong Kong. The report warns that badly drafted national security legislation could harm Hong Kong as an international business hub.

The report, Balancing National Security and the Rule of Law: Article 23 of the Hong Kong Basic Law, was commissioned by Hong Kong Watch and written by Professor Carole Petersen, the former Director of the Centre for Comparative and Public Law at the University of Hong Kong.

Hong Kong Watch Chair of Trustees, Benedict Rogers says:

"This report shows why it is fundamentally important that national security concerns are not used to justify excessive erosion of freedom of expression in Hong Kong. It raises awareness about the threat that the enactment of draconian national security legislation could potentially pose to the freedoms which allow the city to be an international business hub." 

READ THE REPORT HERE

Content of the report

Three key areas are analysed by the report:

1. the status of existing national security legislation in Hong Kong;

2. pressure for future national security legislation;

3. and the importance of protecting freedom of expression for the city as an international financial hub.

Existing national security legislation

The report provides an in-depth study of the use of existing national security provisions in Hong Kong. Referring to national security provisions in the Crimes Ordinance, Official Secrets Ordinance, Public Order Ordinance, Societies Ordinance and the United Nations (Anti-Terrorism Measures) Ordinance, the report says that: “There is no urgent need for additional legislation as Hong Kong already has legislation prohibiting many of the acts specified in Article 23, as well as strong anti-terrorism laws.”

The report highlights that some existing laws including the Societies Ordinance and the Public Order Ordinance are not currently in compliance with international human rights standards. She highlights that this has led to the abuse of these laws, for example with the banning of the Hong Kong National Party which the report says is “an exceedingly slippery slope and could be the start of a severe curtailment of peaceful political speech.” The report recommends that the government of Hong Kong should “only propose additional legislation after the Law Reform Commission has reviewed Hong Kong’s existing laws for compliance with the ICCPR…”

Future national security legislation

On 1 July 2003, at least 500,000 people marched from Victoria Park to the Government of Hong Kong’s Central Offices. The catalyst was an unpopular government bill to implement Article 23 of the Basic Law of the Hong Kong Special Administrative Region, which contained certain draconian provisions and could have been used by the government to curtail freedom of speech and other civil liberties.

The protest led to the legislation being shelved in 2003. Fifteen years later, however, certain pro-Beijing politicians are calling for a new bill to fully implement Article 23. The report provides in-depth analysis of Article 23 legislation, drawing on lessons from the failure of the Hong Kong government to pass national security legislation in 2003, to argue that the government of Hong Kong should:

“only propose additional legislation on the basis of Article 23 after universal suffrage has been fully implemented, while also ensuring that any proposed legislation fully complies with the ICCPR and the rule of law.”

And that the government of Hong Kong should:

“ensure that any legislation implementing Article 23 contains express clauses stating that the laws must be interpreted and applied so as to comply with the ICCPR; [and] ensure that legislation does not prohibit peaceful advocacy for self-determination or constitutional reform as this would violate the ICCPR and Article 39 of the Basic Law.”

In the Executive Summary of the Report, the report says that:

“Although Hong Kong already has strong laws protecting national security (and prohibiting many of the acts listed in Article 23), the local government is under pressure to add to this body of law by explicitly proscribing ‘subversion’ and ‘secession’. Yet the local government is also obligated to comply with the International Covenant on Civil and Political Rights (ICCPR) and to protect the rule of law, which is essential to Hong Kong’s autonomy and its status as an international financial centre. At this sensitive time in Hong Kong’s history, it is critical that human rights, the rule of law, and the city’s free economy are not compromised in the name of national security.”

Business concerns

Finally the report highlights the consequences that the erosion of freedom of expression could have for business. The report examines business opposition to the 2003 legislation, noting that:

“The government attempted to use Article 23 as a justification for expanding liability for unlawful disclosure of local government information. This proposal had no clear connection to national security and could have greatly inhibited investigative reporting by the press. It caused alarm in the business community and the general public, as the press plays an important role in the prevention of corruption.”

The report continues to note that:

“By the end of the consultation period in 2002, many business organizations had submitted comments to the government regarding the proposals to implement Article 23, including: the International Chamber of Commerce - Hong Kong, China Business Council; the Hong Kong General Chamber of Commerce; the American Chamber of Commerce; and the British Chamber of Commerce. The business community was concerned that some of the proposals would reduce the flow of information, stifle creativity and market research, and damage Hong Kong’s reputation as an international business centre.”

In view of this, a key recommendation in the report is that the government of Hong Kong must:

“take all measures necessary to protect freedom of expression and access to information as these rights play a vital role in fighting corruption; undue restrictions would undermine Hong Kong’s status as a free economy and international financial centre.”