Explainer: What Is in Hong Kong’s New National Security Law?
The government says the law is needed because the city is required by Article 23 of its mini constitution, the Basic Law, to establish its own national security legislation. The national security legislation will also build on the Hong Kong National Security Law, or NSL, that China enacted in 2020.
Hong Kong authorities say that despite the current calm atmosphere, the city still faces lingering national security threats from the widespread and sometimes violent protests it saw in 2019. Rights advocates say Hong Kong’s once strong traditions of free speech, assembly and freedom of the press have already been muzzled since Beijing imposed the NSL in response to the 2019 pro-democracy protests. They say the new legislation will further tighten those controls.
The new law will be an extension of the NSL, which criminalizes terrorism, separatism, subversion of state power and collusion with foreign forces. It would add treason, insurrection, theft of state secrets and espionage, sabotage endangering national security, and external interference, as offenses. It would also expand the scope and penalties of crimes covered under existing laws, including sedition.
VOA reviewed the Hong Kong authorities’ 110-page Public Consultation Document on the new law and the government’s reasoning behind the new legislation, as well as heard concerns from some rights advocates.
Below is a summary of the most controversial proposals, from the perspectives of the government and critics:
Broader than NSL, transplants mainland China’s laws to Hong Kong
Government: It’s necessary for the same set of national security standards to be applied throughout the country.
The widespread destruction and “insurrection” that occurred during the 2019 protests, “threatened national security.” Protesters destroyed subway stations, stormed and damaged the legislative building, occupied the airport, highways and tunnels, and paralyzed traffic.
Hong Kong must enact legislation as soon as possible to prevent a recurrence of the 2019 protests, so that it can focus on reinvigorating the economy.
Critics: The proposed new law is broader than NSL and would transplant mainland China’s national security law in Hong Kong. For example, the definition and offenses of state secret and espionage will mirror those in the mainland.
It will have a huge impact on Hong Kong, harming human rights.
“Indeed, the government has made clear it intends to double down on repression of civic freedoms under Article 23 by introducing steeper penalties and expanding cases in which the legitimate exercise of rights would be criminalized in the name of national security,” the advocacy group Amnesty International said in a statement.
Extends police power; restricts due process on national security cases
Government: The time under which a suspect can be held without charge in national security cases should be extended. Currently, Hong Kong’s detention period of usually no more than 48 hours doesn’t allow police sufficient time to gather evidence, especially when many people are arrested as had happened during the 2019 protests. It’s also lower than that of other countries, such as the U.K., where police can apply to extend the detention period for national security cases and hold suspects for up to 14 days for other serious offenses. In the U.K., the suspect’s access to a lawyer of his/her choice is also restricted or delayed in cases involving sensitive matters.
Critics: Current laws already allow police to detain suspects for more than 48 hours if the offense is serious and the risk of absconding, reoffending or impeding the investigation is high.
Longer detentions overseas are controversial and subject to judicial oversight, so it’s not a carte blanche. If the government also restricts the suspect’s access to a lawyer, it will further harm due process rights. Police can already do searches without a warrant, and cases are tried by designated judges with no jury and often no bail. If the new law allows suspects to use only officially appointed lawyers, Hong Kong’s practice will be like mainland China’s, which goes against the international norm.
New offense of ‘external interference’
Government: This new offense would punish people for collaborating with outside forces that interfere in the affairs of Hong Kong and the country, such as by trying to influence the central and Hong Kong government’s formulation of policies, the city’s legislature and courts’ performance of duties, the outcome of local elections or by prejudicing Hong Kong’s or China’s relationship with foreign countries. This new offense would also prohibit overseas organizations and their local affiliates from operating in the city if they are considered national security threats. Legitimate international exchanges will not be affected.
Critics: There’s no clear definition of what these external organizations are or what actions would be considered a danger to national security. Does this mean Hong Kongers can no longer associate with overseas rights groups or people, including self-exiled political dissidents, if the government thinks they threaten national security simply by criticizing its policies?
“Such trivial and ambiguous offenses will only create a greater chill not just on the local people but also on many civil groups or international NGOs, religious groups, or even business groups,” said Eric Lai, a research fellow at Georgetown University’s Center for Asian Law.
Theft of state secrets and espionage: broadens definition and scope
Government: The definition of state secrets and espionage should cover a wider variety of confidential information and acts of spying. Current laws only cover a few types, including defense information. Hong Kong should follow the practice of countries such as the U.S. and broaden its definition to cover sensitive information on scientific, technological or economic matters, as well as on major policy decisions, foreign affairs, Hong Kong-mainland ties or national security itself, if their unauthorized disclosure may damage national security.
Critics: The government doesn’t define what would be considered state secrets. For example, would journalists who obtain government information on controversial policies or consultancy firms that access data for risk assessments or due diligence be accused of breaking the law if the government considers the information they obtained to be state secrets?
“It will basically shut down all whistleblowers. And even if someone is going to blow the whistle and tell the media about it, which media organizations will risk publishing the scoop?” asked Kevin Yam, a former Hong Kong-based commercial litigation lawyer, adding that business groups would find it hard to do risk assessments or due diligence work.
There’s also no mention of a “public interest defense” and exemptions for journalists
There are fears this law could target media seen as providing unflattering coverage.
What happens next?
The monthlong public consultation period — when people can email or fax their comments to the government about the proposed legislation — was launched on January 30 and will remain open until February 28. The draft bill is expected to be officially announced in March or April and passed by mid-year.