Hong Kong’s Proposed Article 23 Legislation Sparks Global Outcry

In January 2024, the Hong Kong government held a press conference regarding the proposed legislation on Article 23. Cai Wenxin/The Epoch Times

The public consultation period for draft Article 23 of Hong Kong’s Basic Law ended on Feb. 28, sparking widespread condemnation from international governments and figures. Critics argue that the proposed Article 23 legislation threatens to undermine the rights and freedoms guaranteed by the Basic Law and the Sino-British Joint Declaration, urging authorities in Hong Kong to reconsider their approach.

State Department Raises Concerns

Matthew Miller, a spokesperson for the U.S. State Department, stated on Feb. 28 that the United States is closely monitoring Hong Kong’s proposed Article 23 of the Basic Law. He emphasized that this development has the potential to impact American citizens, investments, and businesses operating within Hong Kong.

Mr. Miller’s statement highlighted concerns over the vague and expansive definitions outlined by the Hong Kong government, particularly regarding terms such as “state secrets” and “external interference.” Such ambiguity is feared and “could be used to eliminate dissent through the fear of arrest and detention.”

“We are also concerned that Hong Kong authorities will apply Article 23 extraterritorially in their ongoing campaign of transnational repression to intimidate and restrict the free speech of U.S. citizens and residents.”

The U.S. State Department further cautioned that the enactment of Article 23 could exacerbate the constraints imposed by the National Security Law introduced in Hong Kong in 2020. Introducing additional legislation with ambiguous provisions and extraterritorial reach raises concerns that China’s commitments to the international community and the “one country, two systems” framework may be further undermined.

Pelosi Denounces Legislation

Former House Speaker Nancy Pelosi (D-Calif.) joined the chorus of condemnation on Feb. 27, denouncing Hong Kong’s draft of Article 23. She characterized the proposed legislation as another attempt by the Hong Kong government to criminalize its people’s basic civil rights and suppress pro-democracy voices under the pretext of national security.

Ms. Pelosi lamented the continued erosion of the “one country, two systems” framework, emphasizing that “We must continue to demonstrate that the international community stands with the courageous, freedom-loving people of Hong Kong.”

British Foreign Secretary Calls for Reconsideration

On Feb. 28, British Foreign Secretary David Cameron voiced concern over the legislative proposals put forward by Hong Kong authorities, asserting that they fail to fulfill obligations outlined in various international agreements, including the Basic Law, Sino-British Joint Declaration, and key human rights covenants. Mr. Cameron strongly urged the Hong Kong government “to re-consider their proposals and engage in genuine and meaningful consultation with the people of Hong Kong.”

Mr. Cameron acknowledged Hong Kong’s constitutional responsibility to legislate but cautioned that the proposed measures could negatively impact the exercise of individual rights and freedoms. According to the statement, the UK has expressed these concerns privately to Hong Kong authorities and through public consultation.

These concerns include increasing penalties for “incitement” and vague definitions of “state secrets,” which hinder freedom of speech and press; vague definitions of “external forces,” which could impact normal and lawful diplomatic activities; and the lack of independent oversight mechanisms in the proposed measures to prevent administrative authorities from abusing power under the guise of national security.

Australian Department of Foreign Affairs Highlights Concerns

On March 1, the Australian Department of Foreign Affairs and Trade raised similar apprehensions about the proposed Article 23. The Australian government believes it may further erode the rights and freedoms guaranteed by the Basic Law and Sino-British Joint Declaration, following the trend seen since the implementation of the National Security Law in the Hong Kong Special Administrative Region.

Australia stressed that “The effective and just administration of national security laws requires robust checks and balances and clarity around definitions.”

Concerns were also expressed about potential restrictions on rights and freedoms for individuals outside of Hong Kong, “including those living in Australia.”

Australia has communicated these concerns to Hong Kong authorities and intends to continue conveying relevant messages, according to the statement.

Ex-MIT Scholar Criticizes Article 23’s Impact on Press Freedom

Before the conclusion of the public consultation period on Article 23, Dr. Chi-Sang Poon, a retired Principal Research Scientist from the Massachusetts Institute of Technology (MIT) and a legal researcher, offered critical insights on Feb. 16 and Feb. 28.

Mr. Poon highlighted significant distortions and disregard for fundamental rights protected by the Basic Law and the Hong Kong Bill of Rights Ordinance, particularly concerning freedom of speech and press. He cautioned against the expansion of offenses related to subversion and seditious intent, emphasizing the importance of suspending relevant legislation pending the outcome of cases such as former vice-chairman of the pro-democracy political party People Power, Tam Tak-chi. Mr. Tam is serving a 40-month sentence for “uttering seditious words” after chanting slogans such as “Liberate Hong Kong, revolution of our times” on the street.

Furthermore, Mr. Poon underscored the serious infringement on press freedom posed by Article 23. While acknowledging that press freedom may be subject to restrictions under existing laws, he argued that the proposed measures far exceed permissible limits, as guaranteed by international human rights standards.

Tonyee Chow Urges Immediate Halt to Article 23

Human rights lawyer Tonyee Chow Hang-tung was detained on charges of inciting subversion of state power for organizing a candlelight vigil to commemorate the Tiananmen Square massacre. On Feb. 28, a statement was issued by a Facebook page managed by friends of Ms. Chow, indicating that Ms. Chow had submitted extensive opinions to the Hong Kong government via mail and email, offering 23 points of critique in response to the consultation on Article 23.

Ms. Chow firmly asserts that the Hong Kong government should promptly cease all efforts towards enacting Article 23. She calls for a comprehensive review of existing laws related to national security and urges authorities to refrain from using the pretext of national security to suppress human rights and freedoms.

Expressing her opposition to Article 23 from the outset, Ms. Chow rebuts government claims, made “without evidence,” of widespread support for the proposed legislation among Hong Kong residents, which she believes to be unfounded.

Central to Ms. Chow’s critique is the contention that the concept of national security, as delineated in the legislative proposal, is overly expansive and ambiguous, lacking clear definitions of legal responsibilities and boundaries. She warns that such ambiguity could grant unchecked authority to law enforcement officials, enabling them to arbitrarily categorize ordinary crimes or misconduct as threats to national security.

Ms. Chow dismisses the notion of “foreign forces” cited by authorities, asserting that unfounded speculations and conspiracy theories should not form the basis for legislation. She warns that if adopted, the broad definition of national security could pose the most significant threat to Hong Kong, transforming purported national security laws into authoritarian tools that grant unchecked intervention by governmental or political powers into every aspect of society.

Perspectives and Concerns

Current affairs commentator Fung Xi-Qian has raised significant questions regarding the consultation document on the proposed legislation of Article 23, particularly focusing on the vague definition of “foreign and external forces.”

In a statement shared via his Facebook page on Feb. 28, Mr. Fung highlighted the substitution of the term “enemies” with “foreign and external forces.” He expressed concern that such broad terminology could encompass individuals and civil society organizations unrelated to espionage activities or state actions, indicating a general suspicion towards outsiders.

Mr. Fung further scrutinized the repeated use of “foreign and external forces” in the consultation document, noting a subtle difference in the English version, which is “foreign or external forces.” According to Mr. Fung, this distinction suggests a deliberate effort to differentiate between “foreign forces” and “external forces,” raising questions about the inclusion of the Chinese mainland within the latter category and potentially broadening the scope to encompass local organizations within Hong Kong.

Calling for public engagement and scrutiny of relevant legislation, Mr. Fung emphasized the importance of ensuring the accuracy and comprehensibility of the law.

CCP’s ‘Invitation to Tea’ 

Peter Douglas Koon, a former provincial secretary general of the Anglican Church and current Legislative Council member, recently drew attention for mentioning the CCP’s national security department’s informal use of an “invitation to tea” as a warning. Mr. Koon expressed whether such practices should be incorporated into the proposed Article 23.

However, Secretary for Security Chris Tang Ping-keung rejected Mr. Koon’s proposal, citing differences in societal norms and legal systems. Mr. Tang clarified that while Hong Kong lacks a specific interrogation system akin to the CCP’s practice, authorities would conduct investigations as necessary.

The CCP’s National Security Department’s official WeChat account previously published an article titled “Listen to Advice, Don’t Let the National Security Agency Invite You for These ’Ten Cups of Tea,'” outlining scenarios where individuals might be invited for informal questioning, including suspicion of crimes endangering national security or espionage activities.

Commentator Chip Tsao criticized Mr. Koon’s suggestion, deeming it “treacherous and cunning.”

Mr. Tsao argued that the CCP’s definition of “foreign forces” could encompass entities such as the Anglican Church, considering its historical ties to England. Moreover, Mr. Tsao pointed out Mr. Koon’s failure to challenge symbols like the cross during a recent visit by Xia Baolong, director of the Hong Kong and Macao Affairs Office of the State Council of China.

Mr. Tsao concluded that if the “invitation to tea” were to be introduced, Peter Koon should be the first person to be invited to taste it.