Hong Kong’s homegrown security law seeks to define ‘state secrets’ along China’s legislative line
Hong Kong Free Press
Hong Kong is seeking to define “state secrets” along mainland China’s legislative line, a consultation document for the city’s homegrown security legislation has revealed.
The city’s authorities proposed on Tuesday that existing laws should be “improved” to include the term “state secrets,” in order to effectively outlaw unauthorised disclosure of confidential information which may endanger national security, such as that relating to major policy decisions, diplomatic affairs and socio-economic development.
The suggestion was made in a public consultation document for enacting the controversial Article 23 of the Basic Law. The provision stipulates that that the government shall enact laws on its own to prohibit acts of treason, secession, sedition and subversion against Beijing.
Its legislation failed in 2003 following mass protests and it was not tabled again until after the onset of the separate, Beijing-imposed security law in 2020. Pro-democracy advocates fear it could have a negative effect on civil liberties.
See also: Hong Kong’s new national security law seeks to criminalise ‘external interference,’ cyber attacks
More than two decades after the 2003 debacle, the government put forward a proposal on Tuesday to introduce a Safeguarding National Security Ordinance, which seeks to criminalise treason, insurrection, theft of state secrets and espionage, sabotage endangering national security and external interference.
Definition of ‘state secrets’
According to the 110-page document, Hong Kong should introduce the term “state secrets” to its legislation and provide a clear definition to effectively protect sensitive information, which was ”particularly important to protecting national security and core interests.”
The existing Official Secrets Ordinance did not use the term “state secrets” and the protected information listed was “not broad enough.”
“All types of state secrets should be protected in every place within one country. Otherwise, it will create a legal vacuum in which the HKSAR cannot protect state secrets in certain fields, posing risk to national security,” the consultation paper read.
The recommended definition covered secrets concerning major policy decisions on China or Hong Kong affairs, matters relating to the construction of national defence or armed forces, and confidential information linked to China’s diplomatic or foreign affair activities, as well as secrets concerning Hong Kong’s external affairs.
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 suggested.
Proposed definition of “state secrets” under the 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.
The wording of the proposed definition was almost identical to that in China’s law on Guarding State Secrets, which Beijing sought to overhaul last year to expand its scope. The legislation identifies major policy decisions on state affairs, building of national defence and diplomatic activities as state secrets.
The Chinese law also included a provision that classified state secrets into three tiers: top secret, secret and confidential, based on the degree of harm a disclosure would cause to state security and national interests.
Definition of “state secrets” under the Law of the People’s Republic of China 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 document for public consultation, which last just four weeks, also cited definitions of state secrets adopted by the UK, Canada and the US. It was “common practice” for various countries to regard sensitive information as state secrets if improper disclosure could jeopardise national security or interests, the paper read.
Different definitions
The definition of state secrets caused controversy in 2003, then-security minister and current Executive Council convenor Regina Ip said in an interview with the Hong Kong Economic Journal last June.
The New People’s Party chairwoman said mainland China and Hong Kong had different definitions on “state secrets,” with China viewing financial data as confidential information. It had spurred concerns in the financial and media sectors, Ip recalled in the interview, adding the issue of defining state secrets was “rather sensitive.”
Efforts to enact Article 23
In June 2020, Beijing inserted national security legislation directly into Hong Kong’s mini-constitution following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts, but it did not target all seven offences listed in Article 23.
The controversial legislation entered the spotlight again in 2021, after numerous high-ranking officials said the authorities were seeking to “plug loopholes” in the Beijing-enacted security law by implementing Article 23.
A bill regarding the implementation of Article 23 was scheduled to be introduced to the Legislative Council in the second half of 2022, but it was left off the legislature’s schedule for the rest of that year.
Chief Executive John Lee said last June that the homegrown security law would “definitely” be enacted within that year or the next year at the latest, before vowing during last year’s Policy Address that legislation would be completed in 2024.
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