Hong Kong's Article 23 law will 'damage rights,' hurt business: experts and activists

A UN expert adds her voice to a chorus of dismay over the new security legislation.
By Amelia Loi for RFA Mandarin, Cheryl Tung and Kwong Wing for RFA Cantonese
2024.02.28
Hong Kong's Article 23 law will 'damage rights,' hurt business: experts and activists Members of the League of Social Democrats display a banner reading "Without democracy, there can be no livelihood” and "Put the people above the country, human rights above the regime. There can be no national security without democracy and human rights" outside government offices in Hong Kong on Feb. 27, 2024.
(Peter Parks/AFP)

Hong Kong’s forthcoming "Article 23" security legislation will be a major blow to human rights in the city, according to a U.N. human rights expert, American legal scholars and human rights groups.

Public consultation for the Safeguarding National Security Ordinance, which will criminalize "treason," "insurrection," the theft of "state secrets," "sabotage" and "external interference," among other national security offenses, under Article 23 of Hong Kong's Basic Law, ended on Wednesday.

The legislation, highly likely to be passed by the Legislative Council in the absence of opposition lawmakers, is being billed by the government as a way to close loopholes in the stringent 2020 National Security Law, which was imposed by Beijing, ushering in a crackdown on dissent in the wake of the 2019 protest movement.

But rights experts and activists warned in submissions to the government that the law will criminalize actions like peaceful protest or political opposition that should be protected under international law.

"V concerned re proposed legislation under Art23 of the Basic Law in Hong Kong - vague provisions will criminalize peaceful exercise of human rights," Mary Lawlor, U.N. Special Rapporteur for Human Rights Defenders, said via her X account on Feb. 26.

The law will also "have a detrimental impact on HRDs," Lawlor wrote, referring to human rights defenders. 

"I urge HK govt to ensure the legislation complies with its int. legal obligations," said the tweet, which tagged in the X account for the Chinese mission to the United Nations in Geneva.

Rare show of defiance

Public opposition to the law in Hong Kong has been muted amid an ongoing crackdown on dissent under the existing National Security Law and colonial-era sedition laws.

In a rare show of public opposition, three members of the opposition political party, the League of Social Democrats, chanted slogans outside government offices on Tuesday calling for fully democratic elections and human rights before enacting national security legislation.

"No Article 23 without universal suffrage!" they chanted, watched by dozens of police officers. "No national security without democracy and human rights!"

Party Chairwoman Chan Po-ying said the group was trying to respond to the government consultation on the Article 23 legislation, yet had been met by more than 50 police officers on arrival at the venue, while police had filmed the whole protest.

"It really wasn't easy for us to stand in front of government headquarters today," Chan told reporters at the scene. "We are still in the consultation period for the Article 23 legislation ... so I can't think of any reason why they should prevent us from expressing our opinions via a peaceful petition."

ENG_CHN_HKNatSec_02282024.2.jpg
League of Social Democrats Chairwoman Chan Po-ying talks to police before being allowed to hold a protest outside the government offices in Hong Kong on Feb. 27, 2024. (Peter Parks/AFP)

The party wants the government to clarify the meaning of terms like "covering up treason" and "stealing state secrets," to prevent the law from covering peaceful activities by members or the public or the media.

They also want amendments to the 2020 National Security Law so it is less of a threat to freedom of speech.

Seven sins

The London-based rights group Hong Kong Watch made similar points in its submission to the Hong Kong government during the consultation period, the group said in a statement.

The law will prohibit seven types of offenses, and has proposed provisions that the group said were "vague and will criminalize the Hong Kong people’s peaceful exercises of human rights," as well as undermining due legal process and the right to a fair trial in Hong Kong.

"Article 23 will bring further devastating consequences for human rights and freedoms in Hong Kong, beyond the impact of the National Security Law imposed by Beijing in 2020," the group said. "It will also further violate Hong Kong’s international obligations under international human rights law."

It called for sanctions against officials responsible for introducing the law, as well as the repeal of the 2020 National Security Law.

"Although Hong Kong Watch has been repeatedly condemned and harrassed by the Hong Kong government via the use of the 2020 Hong Kong National Security Law, we are still eager to constructively engage in policy and legislative conversation with the authorities," Benedict Rogers, the group’s chief executive said.

"We urge the Hong Kong government to ... ensure that it complies with Hong Kong’s legal obligations under the Sino-British Joint Declaration and international human rights law," he said.

Amnesty International said in its submission to the consultation process that many provisions in the draft law contravene international covenants on civil and political rights, and on economic, social and cultural rights. These remain in force in Hong Kong after being extended to the city in 1976, under British colonial rule.

It cited the Johannesburg Principles as saying that “national security” cannot be invoked to justify restrictions on rights and freedoms unless genuinely and demonstrably intended to protect a state’s existence or territorial integrity against specific threats of the use of force.

"Nor can this national security framework legitimately be applied by governments to protect themselves against embarrassment or exposure of wrongdoing, or to entrench a

particular ideology," it said, adding that national security laws should only be invoked in the event of "a clear and imminent danger of violence," and the peaceful criticism must not be penalized.

According to the Siracusa Principles, a state must also not invoke national security as a justification for measures aimed at suppressing opposition to human rights violations or at perpetrating repressive practices against its population.

"Nor may this be used as an excuse to deny people the right to express different political views, the Amnesty International submission to the consultation on Article 23 said.

Bad for business

Meanwhile, legal scholars at Georgetown University's Asia Law Center said the new law wouldn't just affect basic human rights, but also make it harder to do business in Hong Kong.

While Hong Kong officials have repeatedly pointed to national security legislation in the United Kingdom and the United States to legitimize Article 23 legislation, the Georgetown report said such statements were "disingenuous at best, or willfully misleading at worst."

"For all of their failures, most of [these] states ... have not used their national security laws to jail opposition politicians, for example, or to close down media outlets that have published pieces critical of the government," the report said.

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Plainclothes police officers shoot video of a protest by members of the League of Social Democrats against the Article 23 legislation outside government offices in Hong Kong on Feb. 27, 2024. (RFA)

It cited a lack of political opposition in the Legislative Council and the dissolution of dozens of civil society groups in the wake of the 2020 National Security Law.

"Many of the groups that remain open are a shadow of their former selves, and would probably face government harassment or even criminal prosecution if they were to put forward a full throated critique of the Consultation Document," the report said.

"If new laws are enacted, and existing laws amended, along the lines put forward in the proposal, we believe that the impact on human rights and the rule of law in Hong Kong

will be significant," it said. "We are also deeply concerned that the business environment will be affected as well."

Yaqiu Wang, China research director at Freedom House, said authorities in Hong Kong are more likely to use the law to its fullest extent to suppress any political opposition in the city because its people are less brainwashed and more likely to resist the government.

"A lot of Hong Kongers have lived in a free environment for so long, and have a lot of strong feelings to express," Wang told RFA Mandarin in a recent interview.

"So naturally the Chinese government isn't confident it can rule Hong Kong the same way it does the mainland ... [where] self-censorship runs bone-deep. Hong Kongers aren't like that yet, so ... the Chinese government has to use a more intense form of suppression to extinguish the spirit of resistance among the people of Hong Kong," she said.

She said the vagueness of the definitions in the Article 23 legislation raises concerns that international organizations could run afoul of the law for fundraising from overseas donors, or engaging in exchanges with overseas academics.

Translated by Luisetta Mudie. Edited by Malcolm Foster.

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