In April this year, amidst ongoing pro-democracy protests in Hong Kong, Chinese officials voiced their plans to move forward with the enactment of a national security law to “tame” pro-independence forces in the semi-autonomous region. To this end, the Chinese government intends to pass the long-dormant Article 23 of the Basic Law (also known as the mini-constitution for Hong Kong).
THE IMPACT OF THE PROPOSED ENACTMENT OF ARTICLE 23
Article 23 of the Basic Law provides that 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.”
Proposals for the enactment of Article 23 date back to 2003. However, as they sparked concerns over human rights implications, particularly regarding the rights to freedom of expression and freedom of assembly, previous attempts to enact the legislation were unsuccessful.
Just as in 2003, when the legislative proposal to enact Article 23 was made during the SARS outbreak, the government is now being criticised for using the COVID-19 pandemic as a “golden opportunity” to pass draconian laws aimed at barring democratic social activism. The main arguments opposing the enactment of Article 23 (which were voiced in 2003) are being reasserted at present. The law has been described as reaching beyond the scope of what is necessary for national security law. Criticism centres on issues related to the curtailment of freedom of the press, the failure to meet basic requirements of criminal legislation through use of vague terminology, the discouragement of expressions of political dissent through the introduction of the concept of “seditious publications”, as well as the banning of political association on the grounds of national security.
A THREAT TO “ONE COUNTRY, TWO SYSTEMS”?
Following decades of passivity on the part of the Hong Kong administration, Chinese policymakers intend to directly impose the legislation by using Annex III of the Basic Law, which would bypass the Hong Kong legislature by allowing the law to be made effective immediately through promulgation in the absence of a legislative process. Article 18 of the Basic Law states that “laws listed in Annex III ... shall be confined to those relating to defense and foreign affairs as well as other matters outside the limits of the autonomy of the Region.” China’s parliament, the National People’s Congress (NPC), is thus allowed to add laws applicable to Hong Kong under Annex III insofar as they pertain to defence and foreign affairs, but such laws must still be promulgated in Hong Kong.
Promulgation involves the Hong Kong Chief Executive issuing a legal notice in the Government Gazette, with the consequence of automatic application of the law in question. The NPC’s Standing Committee is expected to present a draft law in early June, which could then be promulgated by Hong Kong’s Chief Executive, Carrie Lam. Human Rights Watch reported that if the bill goes forward, it will be the first time that a national law carrying criminal penalties is introduced through promulgation without proper legislative scrutiny.
INTERNATIONAL AND DOMESTIC RESPONSE
The proposed law has been received largely negatively by the international community, which has described it as a “Death Knell” for the semi-autonomous status of Hong Kong and the protection of its position in international trade and politics. The proposed method of enacting Article 23 has been criticised for the threat it poses to the liberties of the people of Hong Kong and their institutions. Neighbouring Taiwan condemned the proposed legislative measure for its potential human rights violations, noting that its adoption risks increasing public dissatisfaction and fuelling unrest in the region.
In the wake of the announcement regarding Article 23, protesting resumed in Hong Kong with demonstrators seeking to continue their fight for the independence of the region, despite the risk of being victims of police violence and detention. The Hong Kong Bar Association has raised a number of concerns regarding whether the bill will be drafted in accordance with international human rights law, in particular, the International Covenant on Civil and Political Rights. Additionally, the organisation stressed the lack of clarity regarding whether or not the institutions to be established under the new law will operate under the laws of Hong Kong so as not to infringe Article 22 of the Basic Law, which provides for the non-interference of the central administration in those affairs which Hong Kong has the right to administer in accordance with its own laws.
Despite the criticism, Beijing’s delegate to Hong Kong announced that the central government will not allow for any delays. Alongside calls for the swift enactment of Article 23, Hong Kong’s Chief Executive argued that the situation in Hong Kong amounts to terrorism and extremism, which must be handled promptly.
Victoria is a full-time law student and part-time market intelligence research assistant. She was born and raised in Moldova shortly after the fall of the Soviet Union. From an early age, she hoped of living the "democratic dream" of the West. She pursued a university degree in the UK and now holds an MA in International Relations and Sociology awarded by the University of Aberdeen. She is currently studying the accelerated LL.B in Aberdeen. Following graduation she intends on undertaking a master's degree and pursuing a career in international law.