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Article 23 Legislation and Hong Kong Society’s “Right to Know” and “Freedom of Speech”


This article was written during the consultation period for new national security legislation through Article 23 of Hong Kong’s Basic Law. Shao Shanbo, previous head of the former Hong Kong Central Policy Unit (a government think tank advising the Chief Executive that was revamped under a new name in 2018), addresses criticism voiced within Hong Kong and by external observers over the bill’s potential breadth. Prominently, he argues that terms such as “incitement” are not vague because they have been clarified by legal precedents within the city’s common law system.

Key takeaways
  • Shao Shanbo, former head of the Hong Kong Central Policy Unit (a government research body advising the Chief Executive that was revamped into the Policy Innovation and Coordination Office in 2018), distills takeaways for Hong Kong’s future under new national security legislation through Article 23 of the city’s Basic Law.  
  • Writing before the bill’s passage, Shao suggests the legislation will bring the Special Administrative Region closer in line with a “One Country, Two Systems” framework. While the overarching principles of national security legislation on the mainland and in Hong Kong should be the same, Shao argues, it is necessary for the city to design its own  “methods and means” in security governance consistent with its unique history and conditions.
  • Shao dismisses concerns voiced from within Hong Kong and by some external civil society organizations over the broad reach and vague language of the legislation. He suggests the contours of key terms like “incitement” have been clarified by legal precedents within the city’s common law system. He concludes that the legislation will pass with relative ease and urges broad acceptance among Hong Kong’s population.  

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The Hong Kong government conducted a one-month public consultation for the legislation of Article 23 under the Basic Law. The consultation period, set around the Lunar New Year, seemed brief, giving the impression of swift and decisive action. The enactment of Article 23 legislation is a crucial legislative task in the implementation of the “One Country, Two Systems” policy in Hong Kong. It addresses a longstanding headache since Hong Kong’s return over two decades ago, paving the way for the city to embark on a new journey after weathering various storms, marking a milestone in the implementation of “One Country, Two Systems.”


The consultation document, spanning over 80 pages, proposes the enactment of the “Safeguarding National Security Ordinance,” covering and explaining various aspects of the legislation in a comprehensive manner. It extensively cites and references foreign laws, especially those from jurisdictions practicing common law, for comparison and reference, aiming to demonstrate to the public that national security legislation is a common practice globally, often more stringent than what Hong Kong intends to implement.


Veteran Hong Kong journalist Chan Jingxiang recently pointed out in an article, “Section 1.5 of the Article 23 consultation document states: ‘Within a country, the same set of national security standards must apply everywhere. As an inalienable part of the People’s Republic of China, the Hong Kong Special Administrative Region should apply the same national security standards as the country… The definition of ‘national security’ in the local laws of the Hong Kong Special Administrative Region should be consistent with that in the national laws.’” He argued, “In other words, under the topic of national security, there’s only ‘one country’ without ‘two systems’.”


National security, regardless of where issues arise, naturally requires a uniform set of standards for handling principles and objectives. This applies to Hong Kong, Macau, and even Taiwan, where the goals and standards of national security are the same, but the methods of addressing them may differ and do not necessarily have to be the same. Under the “One Country, Two Systems” framework, addressing these issues should follow the local laws, systems, and methods outside the mainland, which is the basic consideration and principle behind the establishment of “One Country, Two Systems.”


If dealing with national security issues involves only “one country” without “two systems,” then there would be no need to enact specific national security laws in Hong Kong. The country could handle such matters, whether investigations, prosecutions, trials, or sentences, as well as defense and foreign affairs, through the national system. The requirement in the Basic Law for Hong Kong to legislate on these matters itself proves that the reality is otherwise.


This approach is not to downplay the seriousness and unity of the “national security” issue; on the contrary, it is precisely to ensure national security can be effectively implemented in Hong Kong. The flexibility in methods and means is aimed at achieving this purpose.


Chan Jingxiang also mentioned in his article, “The mainland’s view on national security primarily focuses on preventing Western interference and stopping the West from promoting ‘peaceful evolution’ in the mainland. After the enactment of Article 23 in Hong Kong, it will be highly consistent with the mainland on national security issues.” This consensus between Hong Kong and mainland societies has long been established. Western countries promote “peaceful evolution” everywhere, targeting Hong Kong as well, with many incidents since its return being attempts by some, supported by external forces, to transform Hong Kong into an “independent political entity” and seize governance rights.


Chan also noted, “In the calculations of Western countries, after the passage of Article 23, Hong Kong has completely diverged from Western countries.” However, the political role of Hong Kong had already been adjusted by the West after the enactment and implementation of the “Hong Kong National Security Law,” and their political activities in Hong Kong could not be the same as before. The legislation of Article 23 under the Basic Law is not the cause for the change in the attitude of Western countries. As for whether Hong Kong will no longer be regarded as an “international financial center” under a financial system dominated by the West, that’s not for them to decide.


The legislation for maintaining national security inevitably touches upon issues of civil rights and freedoms, a point repeatedly emphasized in the consultation document, which seeks to strike a balance between the two. There is a dialectical relationship between security and freedom: they are interconnected yet contradictory. Without certain concessions on rights and freedoms, security cannot be ensured; and without security, rights and freedoms cannot be protected.


The consultation document acknowledges this balance but notes the difficulty in abstractly defining specific principles or objective standards. While this issue can be discussed, it may not be resolved during the formal legislation process. Expectations should be managed realistically, considering the practical situation. Hong Kong society has traditionally prioritized rights over duties, with a tendency towards utilitarianism that requires guidance and adjustment through this consultation process.


Media discussions have focused on several public concerns, including whether leaking state secrets can be defended on the grounds of public interest, whether journalists should receive special exemptions, how incitement can be distinguished from the freedom of expression, whether collusion with foreign powers contradicts Hong Kong’s extensive international ties, and whether prohibiting detainees suspected of national security crimes from contacting certain lawyers infringes on their legal rights. These important issues, typical of common disputes, are difficult to resolve without considering specific circumstances and examples.


The right to defend oneself on any grounds is entirely up to the defense, thus the question of “Can leaking state secrets be defended on the grounds of public interest?” does not arise. Those raising this point essentially demand that the legislation explicitly allows for leaking state secrets for public interest. However, this is technically impossible to implement. Who evaluates “public interest”? How significant is the involved public interest? How much damage would the leaked state secrets cause to the nation? These questions pose challenges in the legislative process.


A typical case where public interest successfully overturned the crime of leaking state secrets is the publication of the “Pentagon Papers,” a classified study of the U.S. Department of Defense, by The New York Times. The U.S. Supreme Court ruled that, due to public interest, The New York Times was not guilty despite clearly violating the law. In “certain circumstances,” breaking the country’s secrecy laws for public interest became a legal principle, based on this case.

以公众利益为抗辩理由,成功推翻泄露国家机密控这种犯罪行为的典型案例,就是《纽约时报》刊登美国国防部机密研究报告“五角大楼文件”(Pentagon Papers)的一案。美国最高法院确认,因应公众利益理由,虽然《纽约时报》的行为明显是违反法律,但仍判它无罪。在“某些情况”下,因为公众利益的考虑,可以违反国家的保密法,已因应这案例成为一个法律原则。

Under the common law system, which Hong Kong maintains, this case could also be referenced in Hong Kong, at the discretion of Hong Kong judges. However, it is important to note that the “Pentagon Papers” involved a historical study by the U.S. Department of Defense on how the U.S. became involved in the Vietnam War and did not concern current military affairs or actions, thus not causing immediate harm to the U.S. government’s policies. The court deemed that citizens had a right to know, resulting in this historic decision. It is impossible to establish specific legal provisions based on these abstract principles and conflicting interests during the legislative process.


Another suggestion was to grant journalists a special exemption. As the “fourth estate,” journalists’ work serves the public interest. Viewed positively, this is merely a request by a group to advocate for their own benefit. Viewed negatively, it is a ludicrous suggestion. Many spies operate under the guise of journalists; granting them and the journalists an exemption to leak state secrets would be absurd. Those proposing this should first demand that Western countries, which value human rights and freedoms, implement this impractical idea.


Another laughable and naive question raised is whether the definition of “incitement” is too broad? How can it be distinguished from the expression of opinions? Could it affect the freedom of debate? In common law cases, there are numerous precedents involving “incitement,” and the definition of “incitement” has been clearly established. “Incitement” is obviously not a general expression of opinion, and the difference is neither ambiguous nor difficult to discern. Those raising this point are nitpicking, creating issues out of nothing.


Some media have attempted to compare the content of this legislation with the draft legislation from 2003, claiming that the scope of this legislation is much broader and its provisions much stricter. While this statement is not problematic on its own, it does not hold up under scrutiny. In 2003, neither the central government nor Hong Kong society had formed a concept of national security. The international environment at that time was fundamentally different from today’s, not to mention Hong Kong’s experiences with the 2014 Occupy Central and the 2019 Anti-Extradition Law Amendment Bill Movement. Therefore, comparing the two is not particularly meaningful.


Due to the reasons mentioned above, Hong Kong society has generally accepted the principle of maintaining national security, which is why the response to this legislation has been relatively calm. Of course, controlling actions that endanger national security is a complex matter. The perfection of laws usually relies on continuous improvements and supplements during the implementation process to respond to actual situations. Hong Kong society should understand this point.


Therefore, looking forward to this legislation, it is believed that it will proceed smoothly. After the consultation period ends, the bill will likely be quickly presented to the Legislative Council, with the expectation that the legislation can be completed before the Legislative Council’s summer recess.


Another point to note is that since the start of the consultation period, the reaction from foreign countries has been quite limited, with only a few politicians making some negative comments, and official stances have been relatively cautious, mainly expressing concern. However, this certainly does not mean that the West will not intervene in this round of legislation in Hong Kong. It is expected that as the formal legislative process begins and the legislation is completed, Western countries will take action. This is anticipated by the Hong Kong government and will not affect our legislative process. Moreover, it is hard to see what actions foreign governments could take against Hong Kong beyond making statements.


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Cite This Page

邵善波 (Shao Shanbo). "Article 23 Legislation and Hong Kong Society’s “Right to Know” and “Freedom of Speech” [23条立法和香港社会的“知情权”“言论自由权”]". CSIS Interpret: China, original work published in Guancha [观察者网], February 26, 2024

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