Safeguarding National Security Ordinance
The Safeguarding National Security Ordinance is a local law of Hong Kong. It was introduced by the Government of Hong Kong on 8 March 2024, passed by the Legislative Council on 19 March 2024, and took effect on 23 March 2024. The ordinance was enacted to implement Article 23 of the Hong Kong Basic Law.
On national security grounds, the ordinance gives new powers to the government to investigate external interference, theft of state secrets, insurrection, and treason, with penalties up to life imprisonment for those found guilty of certain crimes specified by the law. It is the second national security legislation implemented in the city, the first being the central government-implemented Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region. Foreign media and governments expressed concern of the "sweeping" and "tough" clauses, which some considered to be more far-reaching than and go beyond the central government's one, that could further reduce the space for dissident views and erode autonomy of Hong Kong.
Instead of the usual six-month period, the authorities took 50 days from the launch of a public consultation to writing it into law, due to a sense of urgency underscored by Hong Kong and Beijing authorities. Critics said the bill was rushed through in a fast-track process without meaningful discussions.
Background
Article 23
of the Hong Kong Basic Law states:An attempt at enacting legislation to satisfy the requirements in Article 23 was made in 2003 but was shelved indefinitely after hundreds of thousands of protestors demonstrated against it, resulting in the pro-Beijing Liberal Party opposing the bill and the subsequent lack of a majority to pass the bill in the Legislative Council.
Xi Jinping's accession to General Secretary of the Chinese Communist Party, the top position in November 2012, marked a more hard-line authoritarian approach, most notably with the construction of Xinjiang internment camps. The anxiety that Hong Kongers may similarly be brought to heel became an important element in the protests of 2014 and 2019-2020. In 2014, Xi introduced a holistic security concept that placed emphasis on Chinese national security.
While Beijing imposed a national security law on Hong Kong in 2020 in the aftermath of massive protests, it does not cover all BL 23 offences, and Article 7 of that law requires Hong Kong to "complete, as early as possible, legislation for safeguarding national security as stipulated in the Basic Law of the Hong Kong Special Administrative Region".
Carrie Lam administration
After the national security law was imposed, Chief Executive Carrie Lam pledged to conduct as much preparatory work as possible but noted that the administration might not be able to complete the legislation by the end of its current term. In March 2021, the Chinese Communist Party initiated electoral overhaul that plans to ensure only "patriots" may run for office and exclude political opposition. Six months later, Security Secretary Chris Tang said the time had never been so "ripe" to relaunch the bill as the public had witnessed "lawlessness" and acts "endangering national security" in the 2019 protest. Tang also said the bill would focus on countering state-level spying activities, and expressed his confidence that the Article 23 bill will not meet as much resistance as in 2003.Following the election that saw pro-government members capturing nearly all seats, the new legislature convened the first session in January 2022, during which Carrie Lam confirmed "local legislation" will be drafted that meets Article 23 to outlaw new national security crimes. Tang revealed that the government aims to launch a public consultation by the end of the term of the current administration in late June, and table the draft to the parliament in the second half of the year. However, no significant progress was made, and Carrie Lam announced her intention to stand down without seeking re-election three months later. John Lee, the Chief Secretary, was subsequently endorsed by Xi Jinping's administration to be her successor.
John Lee administration
Unveiling his manifesto in April 2022, John Lee pledged to enact the Article 23 bill to fulfil the constitutional responsibility of legislation as part of improving governance. After being elected as the Chief Executive by the 1,461-member committee, he said the legislative agenda would be pushed forward "at the right time" and rejected prioritising political reform. His first Policy Address in October did not mention a timeframe for the Article 23 bill.In July 2023, six months after the post-pandemic reopening of Hong Kong, Lee confirmed the schedule had been formulated and Article 23 bill would be enacted no later than 2024. The government submitted the annual legislative programme to the Legislative Council on 12 January 2024, showing that the "Safeguarding National Security Bill" was slated to be introduced within the 2024 legislative session. Media sources claimed the government's target was to finish all legislative work before the summer recess of the parliament.
Consultation
The Government commenced the public consultation for the proposed legislation on 30 January 2024, lasting for four weeks until 28 February. During the last attempt in 2003, the consultation period was three months. John Lee defended the time period as appropriate and stated that the community has reached a consensus on the legislation of Article 23 which should be enacted as soon as possible. Regina Ip, who failed to push for the 2003 bill as Security Secretary, said the long consultation had provoked many negative reports.BBC reported that much of the public was muted on the legislation, with some dedicated the situation to the chilling effect after the 2020 national security law. Ip, now the convenor of the Executive Council, said other issues such as solid waste charging gathered more public attention.
Describing that the legislative agenda received majority support from the public, the authorities received 13,147 submissions with 98.64% support. Amongst the 0.71% that objected, over 10 were from overseas anti-China organisations or absconders as the authorities claimed.
On 5 March the Legislative Council announced a joint meeting of the Article 23 subcommittee and two panels would be held tomorrow, prompting MPs who were attending the annual Two Sessions congress meeting in Beijing to rush back to Hong Kong, while John Lee also ended his Beijing trip a day earlier than expected. Sources quoted by the media said the "unusual" arrangement was made as the government intended to enact the legislation by National Security Education Day on 15 April.
Provisions
Criminal offences
| Law on Safeguarding National Security | Safeguarding National Security Ordinance | Pre-existing ordinances |
| Secession | Treason | Crimes Ordinance |
| Subversion | Insurrection | Crimes Ordinance |
| Collusion with external elements | Incitement to Mutiny, Disaffection | Crimes Ordinance |
| Terrorist Activities | Sedition | Crimes Ordinance |
| Acquisition, Possession, Disclosure of state secrets | Official Secret Ordinance | |
| Espionage | ||
| Sabotage | ||
| External interference | ||
| Participation in organizations endangering security | Societies Ordinance |
Bold items indicates life imprisonment as maximum penalty.
The bill includes five areas of national security crimes: treason, insurrection and incitement to mutiny, theft of state secrets and espionage, sabotage, and external interference. Treason, insurrection and sabotage, targeting acts that endanger the sovereignty of China and collusion with foreign forces in damaging public infrastructure may face up to life imprisonment. Some offences carry higher penalties if defendants colluded with an external force, such as providing unlawful drilling.
Penalty for sedition, the colonial-era offence criticised as a catch-all offence, is proposed to increase to a maximum 10-year imprisonment, up from the current 2-year. It also includes the new intention to cause hatred amongst different classes of residents of Hong Kong and China. The bill also specifies that public disorder or violence is not the threshold for conviction, a day after the Court of Appeal delivered a similar judgement. Officials also explained the public will need a "reasonable defence" to keep Apple Daily and other seditious publications at home, which carries a maximum penalty of three years.
In accordance with Article 23, foreign political bodies are covered in the bill as well. The Secretary for Security is empowered to prohibit operations of an organisation accused of external interference with bodies including foreign governments and political parties, as well as international organisations, on the basis of national security, if such organisations communicated with external force intended to cause interference. The bill also proposes criminalising making false statements implied to obscure an intent to cause interference with an external force, or to cause "mental pressure". Interfering with government, court, legislative, or electoral affairs by "improper means" through collaboration with external forces comes with a maximum sentence of 14 years in prison. Concerns arose before consultation whether international advocacy groups such as Greenpeace and Amnesty International could be banned in Hong Kong.
A person charged under three types of state secrets offences, i.e., unlawful acquisition, unlawful possession and unlawful disclosure, may invoke the defence that they had made "a specified disclosure", where the purpose of the disclosure is to reveal a threat to public order, safety, or health; that the government is not functioning lawfully; and where the "public interest served by making the disclosure manifestly outweighs the public interest served by not making the disclosure". Such provisions were not mentioned in the original legislative agenda, and were introduced after the authorities accepted suggestions from the pro-Beijing members.