Demystifying the lies that revile Article 23 legislation

Tu Haiming says ‘worries’ about ‘inadvertently’ breaking the law are misplaced, if not fake narratives aimed at vilifying the draft bill

After a month of public consultation on the proposed Article 23 legislation, more than 98 percent of the more than 13,000 submissions received were in favor of the legislation, indicating an overwhelming consensus has been reached within Hong Kong society. Nonetheless, it does not stop Western politicians and Western mainstream media from peddling lies and rumors about the “negative impacts” of the legislation on the rule of law and business environment of Hong Kong.

First, they claim that Hong Kong residents may “inadvertently fall prey to foreign interference” offenses when engaging in regular international exchanges and cooperation. The truth is, committing such offenses necessitates a confluence of three crucial elements: collusion with external forces, the use of improper means, and the willful intent to effect foreign interference. Normal international exchanges and cooperation will in no way meet this high threshold for the offense of foreign interference.

Second, they argue that the “extraterritorial effect” of the proposed legislation will infringe the rights of foreigners. In reality, “extraterritorial effect” fully aligns with the principles of international law and with the international common practice adopted in various jurisdictions. The statute books of countries such as the United States, the United Kingdom, Australia and Canada on safeguarding national security all possess an extraterritorial effect based on the principles of personal jurisdiction and protective jurisdiction. For instance, the US’ laws against treason, illicit disclosure of classified information, and activities in contravention of the Logan Act cover overseas offenders by leveraging the principle of personal jurisdiction.

Third, they assert that the Article 23 legislation will have an adverse impact on Hong Kong’s business environment, weakening the city’s attraction to foreign investors and businesspeople as an international financial and commercial center. But the critics are oblivious to the fact that the provisions of the bill protect normal, legitimate business activities and give full consideration to the need for normal international exchanges of nonpolitical organizations in Hong Kong.

It establishes a relatively high threshold for criminal liability that delineates a clear boundary between lawful and illegal conduct, along with specified exemptions and defenses for particular offenses. For example, Clause 31 of the Safeguarding National Security Bill stipulates that unlawful acquisition of State secrets does not include “the information, document or article coming into the person’s physical possession without the person’s knowledge”, or “the information, document or article coming into the person’s possession or knowledge without the person taking any step”. Normal financial or commercial activities will not constitute such an offense.

Fourth, they are peddling spurious narratives about the duration of the public consultation for the proposed legislation, claiming that a month does not suffice to canvass public opinion. In reality, more than 13,000 submissions had been received upon completion of the consultation; over 98 percent the submissions were in support of the proposed legislation. As a point of comparison, the US passed the Patriot Act just 45 days after the 9/11 terrorist attacks, with the draft bill going through the whole legislative process of the House of Representatives, the Senate and the US president in 72 hours. By the same token, it is imperative for Hong Kong to prioritize the Article 23 legislation in light of the painful lesson of the months-long black-clad riots in 2019-20. Besides, the legislation is long overdue.

According to data published on the Legislative Council’s website, as of Feb 28, there were 519 organizations and groups that had expressed their support of the proposed legislation. The majority, numbering 298, are from sectors such as business and finance, transportation, innovation technology, real estate and construction, indicating a broad level of approval of the legislation in society.

When ◆ia Baolong, director of the Hong Kong and Macao Work Office of the Communist Party of China Central Committee, addressed Hong Kong society at the 10th anniversary of the Chinese Association of Hong Kong and Macao Studies in December, he expressed his high hopes that political and social groups will have a shared commitment to “one country, two systems” and the city’s prosperity and stability notwithstanding their varying interests, noting that the only way to maximize the interests of all social strata is to dovetail their endeavors with national development and Hong Kong’s overall well-being. Political, civic and trade groups should do their part in explaining the Article 23 legislation to people who genuinely care about Hong Kong, and who might be misguided by the biased reporting of the Western mainstream media.

The legislation is intended to ensure Hong Kong’s well-being in the long run by creating a stable social environment that benefits investors and businesses. The bill drafters have attached equal importance to upholding national security, protecting individuals’ rights, and cracking down on and deterring acts that endanger national security. Many provisions of the Article 23 legislation bill adopt higher standards for rights protection. For instance, the UK’s National Security Act 2023 permits police officers of a certain rank to restrict detainees’ right to consult a solicitor, whereas Article 76 of the Safeguarding National Security Bill stipulates that the police will need to apply to a magistrate for a warrant if they have to restrict a detainee’s access to lawyers. With many acts that endangered national security having been exposed over the past few years, the Article 23 legislation will be targeted and practical. “Worries” about “inadvertently” breaking the law are misplaced if not fake narratives aimed at vilifying the proposed legislation.

The views do not necessarily reflect those of China Daily.