Hong Kong’s ‘broad’ homegrown security law may curtail free speech and press freedom, foreign gov’ts and groups say

admin

Hong Kong’s ‘broad’ homegrown security law may curtail free speech and press freedom, foreign gov’ts and groups say

The “broad and vague” terms in Hong Kong’s proposed domestic security law may further curtail free speech and press freedom in the city, foreign governments and overseas legal groups have warned.

The four-week public consultation on the controversial enactment of Article 23 of the Basic Law ended on Wednesday with more than 13,000 submissions, as the Hong Kong government hailed a 99 per cent support rate for the upcoming legislation.

The public consultation document of Hong Kong’s homegrown security law, Article 23, on January 30, 2024. Photo: Kyle Lam/HKFP.

Article 23 of the Basic Law stipulates that the government shall enact laws on its own to prohibit acts of treason, secession, sedition and subversion against Beijing. Its legislation failed in 2003 following mass protests and it remained taboo until after the onset of the separate, Beijing-imposed security law in 2020. Pro-democracy advocates fear it could have a negative effect on civil liberties but the authorities say there is a constitutional duty to ratify it.

Local press groups, foreign governments and monitoring groups abroad have criticised the proposed provisions as being too broad and lacking protection for journalistic activities. HKFP rounds up submissions by six local and overseas groups or governments.

Hong Kong Journalists Association

The Hong Kong Journalists Association (HKJA) on Wednesday released results of an online survey, which collected views from its members on the potential impact of the Article 23 legislation on the industry.

HKJA Hong Kong Journalists Association logo
Hong Kong Journalists Association. Photo: Selina Cheng/HKFP.

All 160 respondents said they believed the domestic security law would have a “negative impact” on press freedom in Hong Kong, with 90 per cent of them saying the impact would be “significant.”

All respondents said the definition of “state secrets” was unclear, and they did not know how to avoid inadvertently breaking the law. Some members also raised concerns that the protection of the public interest was inadequate in the current legislative proposal, the HKJA said.

“There are even members who describe the Article 23 legislation as ‘another nail in the coffin of Hong Kong’s freedom of speech’,” the local press group said in a statement.

The journalist group submitted views to the government earlier this week to express concerns that the legislation could have “far-reaching implications” for the press and would affect regular newsgathering.

Journalists often receive leaks from government sources and it would be difficult for the media to determine if publishing such information would constitute an offence of theft of state secrets, as the term was “too broad,” the HKJA said.

Foreign Correspondents’ Club Hong Kong

The Foreign Correspondents’ Club Hong Kong (FCC) on Wednesday called on the government to “keep press freedom front of mind” when crafting the Article 23 legislation. The group representing more than 2,000 journalists, diplomats, businesspeople, artists and others said authorities should make it clear that journalists would not be targeted for “doing their jobs.”

FCC
The Foreign Correspondents’ Club, Hong Kong. Photo: Kelly Ho/HKFP.

It was “paramount” to add a public interest defence clause in the legislation, while the scope of offences related to theft of state secrets was “too broad in nature,” the FCC said in a three-page letter to the Security Bureau.

Any new security legislation implemented under Article 23 should “clearly define the critical distinction” between legitimate journalism and the offences which were targeted.

Concerning the proposed offences on treason, the FCCHK said a journalist’s duty involved making contact and interviewing people who may have knowledge or information which may constitute an offence. But it was “almost impossible” for the media to judge if someone’s act was endangering national security, it said.

Press freedom
File photo: Kyle Lam/HKFP.

“Therefore, a clear statement of a [public interest defence] should be included in Article 23 to enable the news media to operate within legal bounds since the journalist would have no intention to breach the law when making a legitimate news report that is clearly in the public interest,” the press group said.

Hong Kong authorities claimed in the consultation document that some forces seeking to endanger national security had used “so-called artistic creations” as a disguise to spread anti-government and pro-independence messages. The FCC responded by saying an “unnecessary intervention” in the creative media field would risk “posing a real deterrent” to expressive arts.

“As with journalism, creative arts can also provoke constructive and helpful debate within society, even when dealing with sensitive political issues,” it said.

US Department of State

Matthew Miller, spokesman for the US Department of State, said in a press statement on Wednesday that the US was concerned with the “broad and vague definitions” of “state secrets” and “external interference” in the Article 23 legislation. Such terms could be used to “eliminate dissent through the fear of arrest and detention,” the official said.

US Department of State spokesman Matthew Miller. Photo: US Department of State video screenshot.
US Department of State spokesman Matthew Miller. Photo: US Department of State video screenshot.

The US also raised concerns that Hong Kong’s domestic security law would be applied extraterritorially, which Miller said would intimidate and restrict the free speech of US citizens and residents.

“Article 23 risks compounding the 2020 National Security Law that has curtailed the rights and freedoms of people in Hong Kong,” he said, adding China’s international commitments and the One Country, Two Systems framework would be undermined by the potential extraterritorial reach.

UK’s foreign minister

The UK on Wednesday “strongly urged” the Hong Kong government to “re-consider” the law, saying it would have a “negative impact” on the exercise of rights and freedoms by Hongkongers.

In a statement , Foreign Secretary David Cameron said British authorities had raised their concerns with the Hong Kong government privately. The UK was worried that freedom of speech would be inhibited with the toughening of penalties for speech-related crimes, while international organisations in Hong Kong may face greater risks under the “vague references” to external forces in the proposed legislation.

British Foreign Secretary David Cameron meets Antony Blinken, United States Secretary of State for a bilateral meeting and press conference at the US State Department in Washington D.C. Photo: Simon Dawson/No 10 Downing Street, via Flickr CC2.0.
British Foreign Secretary David Cameron meets Antony Blinken, United States Secretary of State for a bilateral meeting and press conference at the US State Department in Washington D.C. Photo: Simon Dawson/No 10 Downing Street, via Flickr CC2.0.

Reacting to references to the national security legislation in the UK, Cameron said that law was “informed by public consultation” and was subject to “full scrutiny” of the Houses of Parliament.

“I strongly urge the Hong Kong SAR government to reconsider their proposals and engage in genuine and meaningful consultation with the people of Hong Kong,” his statement read.

Georgetown Center for Asian Law

The planned law was “highly problematic,” the Center for Asian Law at Georgetown University said in a 31-page document released on Tuesday.

Citing the national security law enacted by Beijing in 2020, the research centre accused the Hong Kong government of using the legislation to crack down on political opponents including pro-democracy politicians, journalists and activists.

October 1 Police purple flag causeway bay national security banner
A police banner warning against potential violations of the national security law on Oct. 1, 2020. Photo: Kelly Ho/HKFP.

No new security legislation was needed at present, researchers at Georgetown University argued, saying Hong Kong faces “no known national security threats.” Instead, the city’s authorities were facing a “crisis of confidence” since the Beijing-imposed legislation came into force, and the Article 23 legislation would only “exacerbate” such a crisis, they said.

The Hong Kong government’s suggestion to widen the coverage of the sedition offences was “against the global trend” of abolishing the crime, the scholars wrote, citing examples of the sedition law being repealed in the UK and seven Commonwealth states.

“In any case, the proposed expansion of sedition suggests that the government plans to continue to use the law to police and punish free expression in Hong Kong,” the document read.

National flags of China and HKSAR flags in Hong Kong. File photo: GovHK.
National flags of China and HKSAR flags in Hong Kong. File photo: GovHK.

The legal researchers also said they had concerns that Hong Kong’s plan to formulate a state secrets law would be similar to mainland China’s Safeguarding State Secrets Law. A similar structure of “non-transparency” may follow, they warned.

“[W]hat was once a dialogue between government and the governed, mediated in
part through a free press, academic and think tank research, and expert commentary,
will instead become a stilted and partially stifled conversation,” the scholars at Georgetown University wrote.

Hong Kong Rule of Law Monitor

Hong Kong Rule of Law Monitor, a group which says it represents Hong Kong lawyers based overseas, published a 37-page document on Wednesday detailing its concerns.

The response, which the group said was written with the assistance of former University of Hong Kong law professor Johannes Chan, described the domestic security law as “draconian.” It lacked references to the city’s fundamental human rights obligations and some terms used were “too wide and vague,” the group said.

Judiciary Court of Final Appeal law legal system
The Court of Final Appeal in Hong Kong. Photo: Kyle Lam/HKFP.

Defences for acting in the public interest, whistleblowing and news reporting were also missing in the legislative proposal by the Hong Kong government, the group said. It raised concerns that the media may no longer be able to act as public watchdogs, while their ability to provide accurate and reliable information to the public may be “adversely affected” under the new law.

“The government justifies draconian provisions with references to laws in other common law jurisdictions, while ignoring universal condemnation of the 2020 National Security Law and the colonial sedition offence,” the group said in a statement.

See also: What is Article 23? Hong Kong’s homegrown security law is back in the spotlight

It said references by Hong Kong officials to national security laws in other jurisdictions were “self-serving,” with the consultation paper citing only “the lowest or most general criteria to generate a new catch-all offence.”

“By adopting a hard-handed approach, the government risks shutting out opportunities to improve its governance,” the group wrote.

Beijing inserted national security legislation directly into Hong Kong’s mini-constitution in June 2020 following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts – broadly defined to include disruption to transport and other infrastructure. The move gave police sweeping new powers and led to hundreds of arrests amid new legal precedents, while dozens of civil society groups disappeared. The authorities say it restored stability and peace to the city, rejecting criticism from trade partners, the UN and NGOs.

Support HKFP  |  Policies & Ethics  |  Error/typo?  |  Contact Us  |  Newsletter  | Transparency & Annual Report | Apps

Help safeguard press freedom & keep HKFP free for all readers by supporting our team

contribute to hkfp methods

Support HKFP  |  Policies & Ethics  |  Error/typo?  |  Contact Us  |  Newsletter  | Transparency & Annual Report | Apps

Help safeguard press freedom & keep HKFP free for all readers by supporting our team

contribute to hkfp methods

Leave a Comment