Article 23, the new security law, tramples rights and daily life in Hong Kong
This story was first published by Asia Democracy Chronicles (Photo: Shutterstock / jamesonwu1972)
In a move that has sparked widespread concern both domestically and internationally, Hong Kong legislators unanimously approved the Safeguarding National Security Ordinance on March 19 – less than two weeks after the draft law was publicly introduced.
Article 23, as the newly minted law is also known, grants the government sweeping powers to combat various forms of dissent under the guise of protecting national security. It reinforces the National Security Law (NSL) that Beijing imposed on Hong Kong on June 30, 2020.
What is Article 23?
Notwithstanding the adoption of the NSL by the Standing Committee of the National People’s Congress of China almost four years ago, Article 23 of Hong Kong’s Basic Law (or its “mini constitution”) outlines a separate national security legislation that the Hong Kong Special Administrative Region (HKSAR) was obligated to enact.
The first draft of the bill was introduced by the Hong Kong government in 2003, but it soon got scrapped due to backlash from Hong Kong citizens and civil society.
The swift passage of the 2024 draft ordinance may be partly attributed to the shrinking civic space in Hong Kong since the enactment of Beijing’s NSL. The NSL has since created a climate of fear among activists, civil society, lawyers, journalists, and even ordinary citizens trying to exercise their fundamental rights.
Article 23 marks the Chinese government’s increasing influence on Hong Kong while breaching the “One Country, Two Systems” principle, which, under the Basic Law, guaranteed Hong Kong’s right to pursue autonomy over its governance, legal system, and way of life.
How Article 23 amplifies the NSL
Article 23 significantly expands the powers of the Hong Kong government to combat perceived threats to national security.
The new law covers 39 offenses that fall under five categories: 1) treason; 2) insurrection, incitement to mutiny, disaffection, and acts with seditious intention; 3) offenses in connection with state secrets and espionage; 4) sabotage endangering national security; and 5) external interference. (See the comparative table below.)
Article 23 expands on the earlier NSL, which categorized criminal offenses as secession, subversion, terrorist activities, and collusion. Treason, insurrection, inciting members of the Chinese armed forces to mutiny, and sabotage endangering national security are punishable by up to life imprisonment.
Article 23’s human rights impact
Since it came into force in 2020, the NSL has been used to prosecute pro-democracy advocates, such as Joshua Wong and media tycoon Jimmy Lai. Several CSOs have been subjected to police investigations, with some leading to disbandment. Outspoken pro-democracy media platforms, like Apple Daily and Stand News, have been scrutinized and shut down.
Article 23, however, is expected to further undermine the “One Country, Two Systems” framework. Its adoption has received support from various entities in the HKSAR, such as the Equal Opportunity Coalition – Hong Kong’s quasi-national human rights institution – which saw the new law as the government’s commitment to its constitutional duty to adopt its own national security legislation.
Yet human rights organizations, parliamentarians, and activists have denounced Article 23 as a blatant assault on fundamental freedoms such as free speech, press freedom, and peaceful protests, thereby putting pro-democracy defenders at grave risk.
Critics also worry how Hong Kong’s new security law might further impact the independence of Hong Kong’s judiciary, given how it integrates China’s national security framework into Hong Kong’s legal system. As a result, Hong Kong’s and China’s legal systems may start to bear a close resemblance.
The passage of Article 23 also contravenes the U.N. Human Rights Committee’s recommendations during Hong Kong’s fourth Universal Periodic Review of its fulfillment of the International Covenant on Civil and Political Rights (ICCPR), namely: “to ensure that the legislative process for enacting a new national security law is inclusive and transparent and facilitates the free, open and meaningful participation of civil society and the public, and that the concerns relating to the current National Security Law expressed by international human rights mechanisms addressed with a view to ensuring that the new legislation fully conforms with the Covenant.”
Looming threats of retaliation arising from Article 23 are expected to create more chilling effects on all human rights defenders and dissenting voices, among whom self-censorship under the current political climate is already par for the course. The new law will also further stifle political opposition and discourse, thus exacerbating their fears.
Such an environment is in stark contrast to the vibrant civil society and political rights that Hong Kong was long known for.
Article 23’s coming into force has understandably sparked widespread condemnation from the international community. The European Union and United Nations, for instance, have expressed concerns over the law’s negative impacts on human rights and the rule of law.
The United Kingdom, Japan, Australia, and Canada have similarly expressed their opposition to this piece of legislation.
Similar laws elsewhere in Asia
In recent years, many Asian countries and regions have seen the unfortunate rise of repressive laws. India, for example, has repressive laws related to national security such as the Unlawful Activities (Prevention) Act, which targets terrorism and sedition, and the National Security Act which allows preventive detention.
In Singapore, the Internal Security Act allows preventive detention and the suppression of subversion. Meanwhile, Malaysia’s Security Offenses (Special Measures) Act 2012 punishes security and terrorism-related acts.
Such laws give authorities the power to define which actions endanger national security or go against state ideology. In addition, such laws impose pre-trial detention with the possibility of extension, which international human rights experts say is an arbitrary measure. These laws are also used to target and silence human rights defenders, activists, and anyone deemed criticizing the government.
Article 23 marks yet another significant turning point in the region’s political landscape, where authoritarian governments tend to copy repressive laws implemented elsewhere.
Call to action
The Asian Forum for Human Rights and Development (FORUM-ASIA) calls on Hong Kong to honor its people’s fundamental freedoms. We urge the government to either repeal or amend both the NSL 2020 and Article 23 to ensure their alignment with international human rights standards.
“FORUM-ASIA calls on the international community to scrutinize Hong Kong’s human rights record and to demand the government’s compliance with international standards and the ICCPR as entrenched in Hong Kong’s Bill of Rights,” said Mary Aileen Diez-Bacalso, Executive Director of FORUM-ASIA.
FORUM-ASIA is in solidarity with Hong Kong’s pro-democracy defenders who are courageously and peacefully fighting for their fundamental rights and freedoms.
