Wednesday, February 28, 2024

HKU Law Scholars Make Submissions on the 2024 Article 23 Bill and Consultation Paper

In January 2024, the Security Bureau of the HKSAR Government released its long-awaited Public Consultation Document on Basic Law Article 23 national security law proposals (“Safeguarding National Security: Basic Law Article 23 Legislation”). On 8 March 2024, the Safeguarding National Security Bill was presented to the Legislative Council for first and second reading.  Scholars in the Faculty of Law have prepared written submissions (and articles) on the proposals contained in the consultation paper and bill. This commentary can be accessed below.

Albert Chen: Ming Pao 1, Ming Pao 2
Simon NM Young: Submission on the Bill (Chinese Translation on HK01), Submission on the Consultation Paper (Chinese Translation on HK01).  In anticipation of the passage of the Safeguarding National Security Ordinance, Professor Young shared these comments on the new law with various media outlets:
"The Safeguarding National Security Ordinance is plainly intended to deter people from taking any step that might put national security at risk. It achieves this with tough sanctions and special restrictive procedures if one gets caught up in the system. It completes the national security ecosystem which began with the 2020 National Security Law making the system now intensely robust. Once the law is passed, the Central Government will rest assured that there are comprehensive and suitable measures in place in Hong Kong to suppress any threats, whether they be external or internal, to the stability and safety of the country.

For most Hong Kong people, the new law will have little relevance and impact on their daily lives. There are four categories of persons who are likely to be impacted and will need to take more care and be familiar with the requirements and contours of the new law. They are as follows: (a) public officers; (b) government contractors; (c) those who have regular dealings with external forces; and (d) those already within the system or within the radar of the national security authorities.
For categories (a) and (b), the new provisions on state secrets and espionage will need to be closely studied. Category (c) could include a wide range of persons and companies, including academics and journalists. For the most part, the cooperation that tends to happen with external forces already will not lead to any liability under the new law. But if the cooperation tends towards advocating for policy or legal changes in Hong Kong or is simply critical of the Hong Kong or Central governments, then the new offences of espionage and external interference may well be applicable.
As for (d), there would be different sub-categories of persons depending on how far one is within the system. If one is already serving a sentence for a national security offence, unfortunately the time they need to serve will effectively be extended unless they can demonstrate no risk to national security if released with remission. For those facing charges, there will no longer be the option of a suspended sentence of imprisonment. Those who are arrested for a national security offence will also face a more restrictive set of procedures in relation to pre-charge detention, restrictions on accessing a lawyer, a greater hurdle in obtaining bail, and restrictions on movement if granted bail.

As for the legislative process, the Administration invested much effort and labour at the front-end of the exercise in preparing both the Consultation Paper and Bill. There was a dedicated team in Government, including the Secretary for Justice and Secretary for Security, who dutifully attended the long and intensive meetings held in LegCo. The Bills Committee members asked questions about all aspects of the Bill and replies were given. The questions tended towards having the Bill clarified or loopholes closed. The Government agreed with some of these comments and came up with proposed amendments. I would not say it was a rubber-stamping exercise. But fewer comments from legislators were directed to making the law less restrictive; hence we do not see any proposed amendments to this effect. In the past, LegCo Bills Committee meetings, on politically sensitive topics, would be much more fractious, with filibustering and other obstructions to the proceedings. Hence proceedings would have been much longer. Sadly some of the antics in the past would have drown out the more constructive yet critical comments that more moderate opposition legislators were making. In the past, the Bills Committee might also have called for deputations from experts in the community including from the legal profession and law schools. It is regrettable that this was not done on this occasion. I believe legislators would have benefited from such expert input given that the issues involve technical and complex questions/implications of criminal law, procedure and evidence."

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