Breadth and penalties of Hong Kong’s domestic national security law under scrutiny

Hong Kong’s proposed domestic national security legislation has incorporated new offences drawn from overseas references, but the scope of its coverage, the severity of penalties and the length of the public consultation period remain under scrutiny.

The government released a 110-page consultation paper on Tuesday on legislating Article 23 of the Basic Law, the city’s mini-constitution, that focused on five targeted activities, five new crimes and 14 changes to existing laws.

The 30-day consultation period, which began on Tuesday and will run through the Lunar New Year holiday, is far shorter than the three-months provided in 2003, when the government tried to pass the legislation but gave up in the face of massive public opposition. The government intends for the bill to pass this year.

The paper did not spell out the new penalties nor did it specify the scope of the extraterritorial application of the law. It only cited foreign examples as references for the penalties.

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Chief Executive John Lee and Secretary for Security Chris Tan speak during a press conference on the public consultation of the Article 23 legislation. Photo: Robert Ng

For example, in introducing the offence of insurrection, the government said Australia imposed life sentences for similar crimes.

The government also pointed to Britain, the United States and Canada in explaining the five activities drafted to complement the Beijing-imposed national security law.

Security minister Chris Tang Ping-keung said the legislative work had taken into account similar laws overseas but would not copy them directly.

Lau Siu-kai, a consultant for Beijing’s semi-official think tank, the Chinese Association of Hong Kong and Macau Studies, said the consultation document dealt primarily with principles rather than details over safeguarding national security.

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“I think the consultation document intends to forge consensus on the purposes and principles of the law and galvanise public support for it rather than promoting debates on specifics,” he added.

“The current battle is a political rather than legal battle.”

But Lo Kin-hei, who chairs the city’s opposition Democratic Party, said further clarification on the legislation was needed, especially the meaning of state secrets and sedition.

How will the authorities strike a balance between freedom of speech and national security?
Lo Kin-hei, Democratic Party chair

Under the chapter for theft of state secrets, seven types of have been spelled out for the first time, covering those concerning major economic, scientific and technological developments of Hong Kong and the country, as well as policy decisions, the construction of national defence and the relationship between the central authorities and Hong Kong.

The paper did not include concrete examples for each of the seven except to say the information would only constitute a “state secret” if the condition that “disclosure of the information without lawful authority would likely endanger national security” was met.

For offences relating to “seditious intention”, the government explained it could cover bringing “hatred and contempt” against the city’s authorities, central authorities and people from other parts of the country.

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“Even though some cases of sedition were brought to court, the public is still trying to understand the fine line between being seditious and making a comment,” Lo said.

“How will the authorities strike a balance between freedom of speech and national security?”

Lo also referred to the government’s suggestion to increase penalties and extended detention for certain offences, as well as banning detainees from consulting a lawyer, without clarifying the extent and details.

He said he hoped the government would explain whether certain arrangements under the Beijing-imposed national security law, including assigning designated judges and using a higher threshold for bail, would also apply to Article 23 legislation.

The government already knows how it wants to set out the law. This [consultation] is merely window dressing
Eric Lai Yan-ho, scholar

Chief Executive John Lee Ka-chiu insisted the consultation period was suitable as “we have explained the bill in detail in the document to help residents’ understanding”.

Lawmaker Doreen Kong Yuk-foon said there would be enough time for the government to consult the public during the provided time frame as the consultation document was clear.

But the government would need to do its job to explain and promote the legislation to all sectors of the community well, she added.

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Scholar Eric Lai Yan-ho said he was concerned that many key actors and legal phrases in the proposal remained undefined in the proposal, and that authorities did not detail how it would protect citizens’ civil rights under the law.

“In such a short time, does the government really want to receive a variety of opinions,” Lai said. “Or are they conducting a consultation to show that they welcome different opinions?

“But in fact, the government already knows how it wants to set out the law. This [consultation] is merely window dressing.”

Additional reporting by Harvey Kong, Emily Hung and Jess Ma

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