Hong Kong needs local law to boost national security

Safeguarding sovereignty, national security and development interests is the fundamental purpose and bottom line of the “one country, two systems” principle. Without national security, the long-term prosperity and stability of the Hong Kong Special Administrative Region cannot be guaranteed. Article 23 of the Basic Law empowers the SAR government to enact laws on its own so as to safeguard national security. However, even 26 years after the return of Hong Kong to the motherland, no legislation on Article 23 of the Basic Law (BL23) has been enacted.

The sixth-term SAR government led by Chief Executive John Lee Ka-chiu has taken concrete measures to promote legislation on BL23. On Jan 25, during his question and answer session, Lee said the government’s preparations were in the final stage and the “path to the finishing line” is straight. On Jan 30, the government officially launched public consultations on a piece of BL23 legislation.

The senior officials of the SAR government, Executive Council and Legislative Council members, as well as people and organizations from all walks of life in HK have supported such legislation.

Why do we need to enact a piece of BL23 legislation?

The SAR has the constitutional responsibility of enacting legislation based on Article 23 of the Basic Law of Hong Kong. Article 3 of the “Decision on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security by the National People’s Congress” and Article 7 of the “Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” state that Hong Kong should enact legislation on safeguarding national security. Hence, the SAR’s Secretary for Justice Paul T.K. Lam claimed that a BL23 law is an “overdue assignment” and the enactment of the legislation is “paying off old debts”.

Moreover, BL23 legislation will make up for HK’s shortcomings in safeguarding national security. Although the National Security Law is a milestone when it comes to safeguarding national security, it contains only four categories of offenses and penalties: secession, subversion, terrorist activities and collusion with a foreign country or with external elements to endanger national security. The four categories do not cover all activities and crimes that threaten national security.

And since Hong Kong’s existing laws such as the Crimes Ordinance and the Official Secrets Ordinance are yet to be fully enforced, it is necessary to enact a BL23 law to ensure the implementation of all the security and security-related laws in the SAR to safeguard national security.

Besides, BL23 legislation conforms to international conventions. Safeguarding national security by implementing security laws is the top priority of every country, and the foundation of their stability and development. For example, the United States has at least 21 national security laws, the United Kingdom at least 14, Canada at least nine, Australia at least four, New Zealand at least two, and Singapore at least six.

What does BL23 legislation contain?

First, it prohibits activities that endanger state security. During the public consultations on a piece of BL23 legislation, many suggested how to better safeguard national security which covers five categories: treason and related acts; insurrection, incitement to mutiny and disaffection, and acts with seditious intention; theft of state secrets and espionage; sabotage endangering national security and related activities; and external interference and organizations engaging in activities endangering national security. A BL23 law will target precisely those acts that endanger national security, and specify what constitutes such crimes and the penalties for committing such crimes.

Second, it will help build a legal framework for better safeguarding national security while underscoring the importance of the National Security Law, which will deal with national security risks that may occur now or in the future and achieve long-term stability. In the lawmaking process, the government will refer to similar laws in other common law jurisdictions and draw on their experiences and practices to ensure the safety and security of the people.

Third, a BL23 law will protect the extensive rights and freedoms enjoyed by Hong Kong residents in accordance with the law. It will protect, in accordance with law, people’s rights and freedoms, including the freedoms of speech and the press, publication, association, assembly, procession and demonstration, which the SAR residents enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong.

What will BL23 legislation bring about?

To begin with, a piece of BL23 legislation will build a firewall to safeguard national security. The international security situation is changing daily, and there is a danger of the geopolitical risks spilling over into other fields.

Some countries have been interfering in Hong Kong affairs for years, by passing laws detrimental to the SAR, imposing sanctions on it, shielding and supporting those who are opposed to Beijing and are attempting to destabilize the SAR. As such, the SAR cannot turn a blind eye to these moves. It has to take pragmatic measures to plug the security loopholes, establish a firewall and safeguard security of the SAR and the motherland.

In this context, a BL23 law will serve as the “patron saint” of Hong Kong. During the violent demonstrations and riots in 2019-20, separatists who advocated “Hong Kong independence”, went on the rampage in the city. And even though Hong Kong, of late, is enjoying peace, the uncertainties have increased the risks of instability.

National security risks are indeed real for Hong Kong residents. It is necessary therefore to improve the legal system in order to better safeguard national security by preventing the crimes which could be committed by separatists in the SAR in collusion with foreign forces. Only in this way can Hong Kong attain social stability and ensure the well-being of all its residents.

And last, a BL23 law will pave the SAR’s path from chaos to prosperity while promoting good governance. Despite the implementation of the National Security Law, individuals who are opposed to China have continued to try and destabilize the SAR. But the truth is that the rule of law in the SAR remains robust, its economy is still strong, and its business environment has continued to improve.

For example, according to SAR government data, the number of start-ups in Hong Kong increased by a record 272 in 2023 — from 4,257 in 2022. And in the first 11 months of 2023, the government received more than 200,000 applications for a variety of programs to recruit talents, of which over 120,000 were approved, far higher than the target of bringing in at least 35,000 talents each year.

More important, a survey by the American Chamber of Commerce in Hong Kong on Jan 30 showed that 79 percent of its members have confidence in the rule of law in the SAR, while the president of the German Chamber of Commerce in Hong Kong said that law-abiding German nationals would not be affected by a BL23 law.

It is widely believed that BL23 legislation will help promote Hong Kong’s long-term prosperity and stability and ensure the SAR remains a favored destination for foreign investors.

As Lee Ka-chiu said, the BL23 legislation is urgently needed. As long as Hong Kong society works together to draft a BL23 law, Hong Kong can achieve high-quality development and opening-up, leverage its unique position and advantages, cope with potential risks and challenges, and thus better safeguard national security in order to help build a better tomorrow.

It is widely believed that BL23 legislation will help promote Hong Kong’s long-term prosperity and stability and ensure the SAR remains a favored destination for foreign investors.