Frank Ching is a Hong Kong-based freelance journalist.
In 2019, the government took 97 days to solicit the Hong Kong public’s views on enhancing animal welfare. By contrast, this year, Hong Kong Chief Executive John Lee devoted a mere 30 days to consultation on implementing complex national security legislation. And on Tuesday, just 20 days after that consultation period ended, the Legislative Council unanimously approved the Safeguarding National Security Ordinance, which will go into effect on March 23, and will deal with offences such as treason, insurrection, sedition, sabotage, espionage, external interference and unlawful acquisition and possession of state secrets.
It all happened with remarkable speed. The legislature didn’t spend long scrutinizing it; the 15-member bills committee finished its clause-by-clause study in only six days, working through the weekend to do so. And while the final meeting of the full legislature was a 10-hour marathon, each of the 88 legislators present spoke in support, with quite a few even adding that it was an honour to have contributed. Even Andrew Leung, who doesn’t usually vote as the president of the Legislative Council, departed from tradition and voted for passage.
While the law’s passage may have happened quickly, for Mr. Lee, it has been a long time coming. In an emotional speech after the law was passed, he called this “a historic moment that Hong Kong has been waiting for 26 years, eight months and 19 days” – since the day that the British colony was handed over and became a Chinese special administrative region – and declared that its politicians had “finally accomplished a glorious mission.” Similar sentiments were voiced by Mr. Leung as well as many legislators, especially those on the bills committee.
Some believe that the rapid passage was intended to make the law a fait accompli before Western countries, chiefly the United States, could vote for sanctions against individuals involved. Both Mr. Lee and Secretary for Security Chris Tang, who played a major role in the bill’s drafting, have already been sanctioned by the U.S. since 2020; at the time, Mr. Lee held Mr. Tang’s current position and Mr. Tang was the commissioner of police, and they contributed significantly to the implementation of China’s national security law. And now, experts believe the national security law will have a chilling effect that further threatens Hong Kong’s reputation as an international financial and business centre.
How did we get here?
In 1997, Article 23 of the Basic Law, Hong Kong’s mini-constitution, called on Hong Kong to pass security laws “on its own.” An attempt to do so was made in 2002, prompting hundreds of thousands of people to take to the streets, including 500,000 protesters on July 1, 2003. The bill was eventually shelved.
But China became increasingly impatient. In 2019, the Hong Kong Legislature tried to amend the Fugitive Offenders Ordinance to allow extradition to mainland China, and after widespread riots, Beijing drafted a national security law for Hong Kong and insisted that the region discharge its constitutional responsibility and promptly enact its own security laws. The legislation that has just passed fulfills the Chinese government’s demand.
However, the way the consultation paper was drafted raises questions. In 2003, then-chief executive Tung Chee Hwa’s government agreed, after intense discussion, that public interest could be cited as a defence in national security cases. In the 2024 consultation document, however, public interest wasn’t even mentioned. It was only after the Law Society pointed out that Canada’s Security of Information Act provided for it that the government grudgingly agreed to allow for public interest defences. This did not make the government look good.
One positive feature of the consultation document was the inclusion of foreign laws, partly to persuade people that Hong Kong wasn’t doing anything other countries aren’t. The problem is that only laws that are on the books are listed. Laws that have been taken off the books don’t appear, and that is a pity.
One example is the crime of sedition, which was designed in 16th-century England to protect the monarchy and suppress dissent. The crime was legislated throughout the British colonies, thus finding its way to Hong Kong. In the 21st century, many countries have abolished it, including Britain itself.
The government could have mentioned the international trend toward abolishing sedition, but it didn’t. Instead, the consultation document says, “Having taken into account the relevant laws of foreign countries … we recommend to improve the offences relating to ‘sedition.’” The “improvement” appears to be mainly heavier sentences. The law also says that “proof of intention to incite public disorder or to incite violence is not necessary.”
The U.S. offers a model for how sedition laws can be implemented. The relevant portion of the United States Code – Section 84 of Chapter 115 of Title 18 – covers “seditious conspiracy,” which states: “If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”
The words “by force” appear four times in that sentence. Even an attempt to overthrow the government is not a crime unless it entails force.
But in its wisdom, Mr. Lee’s government chose to disregard this overseas example, as well as the Hong Kong Bar Association’s advice to add a requirement of intention to incite violence or disorder, or counselling others to disobey the law, to the definition of seditious intention. Instead, the government stuck to its original decision.
The government was buttressed in its efforts by a supportive, “all patriots” legislature, which toughened the bill even further. For example, while the bill proposed that a suspect could be deemed an absconder six months after a warrant expired, lawmakers argued for dropping the six-month wait; the government agreed. Lawmakers also proposed another amendment to empower the Chief Executive to make subsidiary legislation “for unforeseen circumstances,” and this proposal, too, was embraced by the government, which pledged that the new clause would not be invoked “randomly.”
In recent months, much emphasis has been placed on shifting the focus from this major legislative effort to the government’s work to develop the economy. This was also underlined in Mr. Lee’s Tuesday address to legislators: “Together,” he said, “we will make Hong Kong a more prosperous and better home for everyone.”
This was a theme echoed by China. The Hong Kong and Macao Affairs Office in Beijing showed the importance the Chinese government attaches to Hong Kong’s economic role in its postvote comments: “The legislation fully considers the need for Hong Kong to operate as an international financial, shipping and trade center.”
Whether Hong Kong will succeed in reviving this role may well depend on how this law is perceived internationally. There has been criticism regarding the law’s vagueness, which may give pause to the business community. Access to information and transparency, for instance, are important to investors, who don’t want to inadvertently run up against overly broad laws.
Now that the requirement of Article 23 has finally been met, it remains to be seen what happens next. The best outcome would be for the law never to be used, as has been the case with Macau for the last 15 years. This could, of course, be wishful thinking.