Article 23 then and now: What changed between 2002 and 2024, as Hong Kong’s local security law is resurrected
Hong Kong Free Press
A planned security law which in 2003 brought half a million Hongkongers onto the streets in protest is back in the spotlight. Chief Executive John Lee has vowed to complete the enactment of legislation as stated in Article 23 of the city’s mini-constitution, a homegrown security law which was long a politically taboo subject.
Authorities on Tuesday published a 110-page consultation paper, marking the start of a one-month consultation period.
During the previous attempt to legislate Article 23 of the Basic Law, which requires Hong Kong to outlaw seven types of acts that endanger national security, authorities offered a three-month consultation period which drew over 90,000 submissions.
The march on July 1, 2003 – the sixth anniversary of the city’s return to Chinese rule – forced the Tung Chee-hwa administration to drop the bill, saying there was no “timetable” for the legislation until it could command “sufficient consultation and support.”
The then-security minister Regina Ip tendered her resignation days before the mass protest, citing personal reasons, apologising four years later. Tung stepped down two years later.
The newly-unveiled version is set to cover five types of crime: treason, insurrection, theft of state secrets and espionage, sabotage endangering national security, and external interference. Lee said the new law would effectively combat pro-independence threats and “attacks by foreign forces.”
Beijing in June 2020 imposed its own sweeping national security law on Hong Kong – targeting secession, subversion, terrorism, and collusion with foreign forces – following months-long pro-democracy protests and unrest the previous year. Critics say that law has already stifled dissent – a claim denied by authorities – but officials say a home-grown bill is still necessary.
They say it will “plug the gaps” in the existing national security regime and that the legislation was a “constitutional responsibility” left unfulfilled since the Handover in 1997.
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HKFP takes a look at some of the key differences between what was suggested more than 20 years ago and the current proposals.
What are the Article 23 offences?
Article 23 stipulates that Hong Kong shall enact its own legislation to safeguard national security against seven types of crimes.
Article 23 of the Basic Law
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 organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.
Some, such as treason and sedition, are covered by laws inherited from the British colonial era. The 2002 consultation paper sought to “[make] use of existing legislation where appropriate” while creating new offences of secession and subversion, which were then yet to be codified.
It proposed repealing a number of existing laws including one covering “treasonable offences,” which stipulated that if a person intends to commit treason and publicly manifests such an intention, they could face life in prison.
In the 2002 consultation paper, authorities said such a law was “rather wide” and recommended replacing it with more expressly defined legislation to catch preparatory acts of treason.
The 2024 version retains the original provisions on treason. Authorities said the concept “is not unfamiliar in common law jurisdictions,” citing Canada as an example.
Since secession and subversion are covered by the Beijing-imposed national security law, the 2024 consultation paper instead proposes a raft of new offences including one of “insurrection” to deal with “acts of serious civil disturbance” within China, including Hong Kong.
The grounds for creating an offence of “insurrection” cite the pro-democracy protests and unrest in 2019, which authorities repeatedly describe as “the Hong Kong version of ‘colour revolution'” in the 2024 briefing paper.
“The large-scale violence that occurred during the ‘black-clad violence’ in 2019 did endanger the public safety of the HKSAR as a whole and posed threats to national security, but dealing with them by the offence of ‘riot’… fails to adequately reflect, both in terms of criminality or the level of penalty, the nature of such violence in endangering national security,” the 2024 paper reads.
Protests erupted in June 2019 over a since-axed extradition bill. They escalated into sometimes violent displays of dissent against alleged police brutality amid greater calls for democracy and freedom. Neither independence – nor regime change – were among the five, popular demands of the movement, though a small faction of protesters were pro-independence.
As the protests subsided following the Covid-19 outbreak and Beijing’s imposition of the 2020 security law, authorities have charged suspects in a large number of protest-related cases with rioting as prosecutions and trials continue.
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The 2024 document also proposes measures to tackle cyber attacks and “external interference,” including specific clauses to ban foreign interference in the city’s execution of policy, elections, and court procedures.
“Some of the ‘independent Hong Kong’ ideas are still being embedded in some people’s minds,” John Lee told a press conference last Tuesday as he announced the plans for Article 23. “Some foreign agents may still be active in Hong Kong,” he added, without elaborating.
Article 23 and state secrets
A major controversy arising from Article 23’s legislation revolves around what counts as “state secrets” and what constitutes “unlawful disclosure.”
Official information in Hong Kong is currently protected by the Official Secrets Ordinance. While the existing legislation demarcates the scope of protected information and outlaws acts of espionage and unlawful disclosure, it does not include the term “state secrets.”
In the 2002 paper, authorities said the Official Secrets Ordinance already provided “a good foundation” to protect state secrets and did not propose further expanding its scope.
“At the same time, in order to safeguard freedom of expression and information, protection should only be afforded to truly deserving categories of information, and the means of protection should be clearly defined,” the 2002 paper added.
In the 2024 paper, however, authorities said the protected information listed in the ordinance was “not broad enough” to cover state secrets.
See also: Article 23 seeks to define ‘state secrets’ along China’s legislative line
The recommended definition of state secrets in 2024 covers information on “major policy decisions” on China or Hong Kong affairs, national defence, and diplomacy.
Information on Hong Kong’s relationship with Beijing and China’s socio-economic development would also amount to state secrets and must not be divulged without lawful authority, the authorities suggest.
Proposed definition of “state secrets” under the 2024 Article 23 legislation
If any of the following secrets, the disclosure of which without lawful authority would likely endanger national security, the secret amounts to a state secret:
(a) secrets concerning major policy decisions on affairs of our country or the HKSAR;
(b) secrets concerning the construction of national defence or armed forces;
(c) secrets concerning diplomatic or foreign affair activities of our country, or secrets concerning external affairs of the HKSAR, or secrets that our country or the HKSAR is under an external obligation to preserve secrecy;
(d) secrets concerning the economic and social development of our
country or the HKSAR;
(e) secrets concerning the technological development or scientific technology of our country or the HKSAR;
(f) secrets concerning activities for safeguarding national security or the security of the HKSAR, or for the investigation of offences; or
(g) secrets concerning the relationship between the Central Authorities and the HKSAR.
Definition of “state secrets” under China’s law on Guarding State Secrets
Article 8 In accordance with the provisions of Article 2 of this Law, State secrets shall include the following:
(1) secrets concerning major policy decisions on State affairs;
(2) secrets in the building of national defence and in the activities of the armed forces;
(3) secrets in diplomatic activities and in activities related to foreign countries as well as secrets to be maintained as commitments to foreign countries;
(4) secrets in national economic and social development;
(5) secrets concerning science and technology;
(6) secrets concerning activities for safeguarding State security and the investigation of criminal offences; and
(7) other matters that are classified as State secrets by the State secret-guarding department.
Matters that do not conform to the provisions of Article 2 of this Law shall not be State secrets.
Secrets of political parties that conform with the provisions of Article 2 of this Law shall be State secrets.
The wording of the proposed definition is almost identical to that in China’s law on Guarding State Secrets, which Beijing sought to overhaul last year to expand its scope.
Article 23 and investigative powers
Both the 2002 and 2024 Article 23 consultation papers proposed enhancing investigative powers and amending procedures in handling national security cases, but to varying degrees.
The 2002 paper focused on granting extra powers to strengthen the capability of police in obtaining evidence in the investigation of national security offences. Proposed additional powers included emergency entry and seizure, financial investigatory powers, and certain legal powers relating to the summoning of witnesses.
On a separate note, the 2002 paper recommended removing time limits for bringing prosecutions in national security offences such as treason and sedition. Under existing legislation, prosecutions for treason must be brought within three years, and for sedition within six months.
“We question whether it is right to ‘write off’ a serious criminal offence because of the expiry of a time limit for prosecution,” the 2002 paper read.
Instead of lifting the time limit for prosecutions, the 2024 paper proposes extending the period of permissible police detention during a preliminary investigation. Officers are currently allowed to hold a suspect for 48 hours without charge in criminal investigations.
“The experience gained from handling the ‘black-clad violence’ shows that, after the occurrence of large-scale riots, the Police may encounter grave difficulties in gathering evidence and require relatively more time to complete preliminary investigation on all the persons arrested,” the 2024 paper says.
It also suggests measures to address suspects absconding overseas, citing the 13 arrest warrants which authorities issued last year for activists-in-exile, including former lawmakers Nathan Law, who is now based in the UK, and Ted Hui, now based in Australia. Measures such as cancelling the absconder’s passport are proposed, referencing US legislation.
In addition, the 2024 paper proposes revoking a longstanding rule which grants prisoners a maximum remission of one-third of their sentence for good conduct. It says there were instances in which prisoners convicted of national security offences “absconded or continued to carry out acts and activities endangering national security” upon early release.
This appears to be related to pro-independence activist Tony Chung, who fled to the UK after he was granted an early release from prison over his national security jail term last year. Authorities had ordered the activist to return to prison, citing a breach of his post-prison supervision order.
The 2024 paper recommends that, in national security cases, prisoners should only be granted early release if authorities have “sufficient grounds” to believe that the offender would no longer endanger national security.
Penalties under Article 23
In the 2002 Article 23 proposal, the government had set out the existing and proposed penalties for the offences in an annexe.
For instance, the suggested jail term for the offence of incitement to violence or public order which seriously endangers the stability of the state or the HKSAR stood at seven years, while the convicted individual would also face an “unlimited fine.”
The proposed punishment was significantly more severe compared to the sedition offence, which the authorities said was not a “direct equivalent” but could be used as a reference. Under the existing law those convicted of sedition for the first time face up to two years of imprisonment and a HK$5,000 fine. This would rise to up to three years for a subsequent offence.
The 2024 consultation paper, however, does not state a clear penalty for the offences. The authorities only cite the maximum penalties in other countries and regions, such as life imprisonment for treason in states such as the UK, Australia and Canada.
The government also proposes raising the penalties for the offences of “seditious intention” and “possession of seditious publication.” But the consultation document does not state a new suggested jail term.
Consultation period for Article 23
Members of the public have until February 28, 2024, to express views on the latest proposal. The four-week consultation period is significantly shorter than the three months in 2002.
The government had received more than 90,000 responses from the public when the consultation period ended on December 24, 2002. Then-acting permanent secretary of the Security Bureau Timothy Tong said the figure showed an extensive consultation.
“In the past few months, there have been divergent opinions circulating in society regarding the legislative proposal, which precisely reflects the existence of vibrant freedom of speech in Hong Kong,” he said at the time.
The Democratic Party, one of the city’s last remaining pro-democracy groups, said on January 30 this year, that the government should extend the consultation period to at least three months. The public may have difficulty in understanding the “rather complicated” 110-page consultation document, party chairman Lo Kin-hei said.
Reactions
Lo said the government should clarify terms in the legislation such as “state secrets” and “national security.” He said the general public would not breach the law deliberately, but there may be ambiguity over whether journalists who conducted investigative reporting involving government information may be seen as jeopardising national security.
He added the government should give the public at least three months to provide feedback.
The party’s reaction was much more muted compared to its vocal opposition back in 2002 and 2003. Members of the party staged a hunger strike of 100 hours in protest.
The city’s opposition-free legislature threw its weight behind the latest consultation exercise, claiming the proposed law was “in line with international practices.” Legislative Council President Andrew Leung also vowed to fulfil the city’s constitutional responsibility to enact Article 23 legislation as soon as possible.
‘Room for discussion’ on Article 23 consultation
The Hong Kong Bar Association was silent on the latest consultation paper until Friday, when its chairman Victor Dawes spoke to the media outside the High Court. He said that there had been discussion about a public interest defence to exempt people, especially journalists, from the new offence of divulging state secrets.
“It is something we should definitely consider. But if were to do this, the threshold will have to be stated very clearly. The threshold can’t be too low,” he said in English.
Dawes said the question of such a defence would depend on the degree of jeopardy which a disclosure caused to national security. He said the Bar Association would have to consider the proposed legislation carefully before offering any constructive opinions.
At the Ceremonial Opening of the Legal Year last week, Dawes said the Article 23 legislation would “no doubt trigger a fresh round of debate” over Hong Kong’s future. It would likely trigger criticism that Hong Kong was no longer a free city and that the rule of law was “dead,” he said.
“While some of these remarks may not be bona fide, many people do have genuine concerns,” he said.
Dawes said the legislation must be “clear and precise,” and the city must strike a balance between safeguarding national security and protecting fundamental rights as enshrined in the Basic Law.
“The consultation process will have to be transparent and thorough in order to refute any suggestion that our government is not prepared to listen.”
The professional group made similar demands for clarity in the legal provisions back in 2002. It said Hong Kong should not simply copy relevant provisions from China’s criminal law.
The Law Society, which represents solicitors, said it would carefully examine the legislation.
“A proper balance should be struck between discharging the aforementioned constitutional duty on the one hand, and on the other hand giving due safeguards to the conduct of everyday lives of Hong Kong citizens and business activities…” said its president Chan Chak-ming.
Investment sentiment amid Article 23
The impact on investor sentiment was closely watched in both the 2002 consultation exercise and the one launched on January 30 this year. Tycoons, including billionaires Li Ka-shing and the late Stanley Ho, had rejected concerns in 2002 that the market would be negatively affected by the homegrown security law.
Ho, known as the “godfather” of Macau’s casinos, said at the time that it was “already too late” for Hong Kong to enact Article 23. It would reassure the stakeholders that they had better protection when investing in the city, he said.
But then-finance sector lawmaker David Li said in December 2002 that some foreign banks were worried that Article 23 would affect press freedom and the flow of information. If the government failed to assuage their concerns, they might leave Hong Kong, local media reported at the time.
“The impact on [the media] is more crucial because it affects the banking sector as well. We rely on your newspapers and your reports to provide us with an accurate reflection of the facts,” Li, who was also executive chairman of the Bank of East Asia, said in December 2002.
Since the start of the latest consultation, the local business community has only voiced support. The Real Estate Developers Association Hong Kong, for instance, said on Tuesday that enacting the domestic law was “the will of the people,” while several chambers of commerce jointly said the overall business environment would be improved.
In a joint statement released on Tuesday, the Hong Kong General Chamber of Commerce, the Chinese Manufacturers’ Association of Hong Kong, the Federation of Hong Kong Industries and the Chinese General Chamber of Commerce said implementing Article 23 would provide a solid framework to protect national security and improve the overall business environment.
Article 23 and Hong Kong’s civil society
In the 2002 consultation document, the government said it had “carefully examined” the views expressed by professional groups and NGOs, including the Hong Kong Bar Association, the Law Society of Hong Kong, the Hong Kong Journalists Association (HKJA), the Hong Kong Human Rights Monitor and various political parties and lawmakers.
The HKJA was not among the “representative and legitimate” press organisations that were invited to give opinions this time.
Security minister Chris Tang said on Wednesday the HKJA was “unrepresentative.” The press group later issued a statement to refute Tang’s remarks.
The official did not state which press organisations were invited to give opinions on the latest legislative proposal. In response to HKFP’s enquiries, the Security Bureau said on Thursday that the government met with representatives from the Hong Kong News Executives’ Association and Hong Kong Federation of Journalists.
The HKJA – the city’s largest press group – had been labelled as an “anti-government political organisation” by Beijing-backed newspaper Wen Wei Po, which accused it of slandering the government and supporting “fake reporters.”
Since the enactment of the Beijing-imposed national security law, some 58 organisations including unions, churches, media groups and political parties have disbanded.
They include groups such as the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, which strongly objected back in 2002.
The late prominent democrat Szeto Wah, who chaired the alliance in 2002, said the group would continue to “vindicate” victims of the 1989 Tiananmen Square crackdown and demand the release of social activists.
The group behind Hong Kong’s annual Tiananmen vigil decided to disband in 2021 after 32 years. Three of its former leaders are currently detained pending trial for allegedly inciting subversion.
Amnesty International, which shut its Hong Kong branch in 2021, criticised the latest Article 23 legislation as bringing the city to “potentially the most dangerous moment for human rights.” It accused authorities of showcasing their intention to “double down on repression of civic freedoms.”
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