A new report by a UK human rights watchdog has warned that badly drafted national security legislation could harm Hong Kong’s status as an international business hub.

Article 23 of Hong Kong’s Basic Law stipulates that the city should enact a national security law prohibiting treason, secession, sedition, subversion. Plans to roll out the law failed in 2003 amid mass protest, and the proposal has not returned since. However, pressure has been building for the current administration to enact the law as soon as possible, with provisions tougher than the 2003 version.

The new Hong Kong Watch report was written by law professor Carole J. Petersen, who taught law at local universities between 1989 and 2006. She said that the government must take all measures necessary to protect freedom of expression and access to information as such rights play a vital role in fighting corruption.

article 23
A banner against Article 23 security law. Photo: HKFP/Ellie Ng.

“Undue restrictions would undermine Hong Kong’s status as a free economy and international financial centre,” she wrote.

Petersen was the former Director of the Centre for Comparative and Public Law at the University of Hong Kong, and is now a law professor at the University of Hawaiʻi at Mānoa.

She said that the government in 2003 used the legislation as justification for expanding liability for unlawful disclosure of local government information. It had no clear connection to national security and could have greatly inhibited investigative reporting by the press, she added.

“It caused alarm in the business community and the general public, as the press plays an important role in the prevention of corruption,” she said. “The business community was concerned that some of the proposals would reduce the flow of information, stifle creativity and market research, and damage Hong Kong’s reputation as an international business centre.”

Carole J. Petersen
Carole J. Petersen. Photo: University of Hawaiʻi at Mānoa.

She wrote that Hong Kong already had strong local legislation prohibiting many of the acts specified in Article 23, including national security provisions in the Crimes Ordinance, Official Secrets Ordinance, Public Order Ordinance, Societies Ordinance and the United Nations (Anti-Terrorism Measures) Ordinance.

“There is no urgent need to enact additional legislation at this time. Instead, the local government should devote its resources and political capital towards addressing the shortage of affordable housing and other pressing social concerns in the territory,” Petersen wrote.

She wrote that some existing laws, including the Public Order Ordinance and the Societies Ordinance, were are not in compliance with international human rights standards. She cited the government’s move to ban the pro-independence Hong Kong National Party under the Societies Ordinance.

She added that the independence movement had been entirely peaceful, did not threaten public order in the territory, and could not conceivably threaten the security of the larger nation.

“This is an exceedingly slippery slope and could be the start of a severe curtailment of peaceful political speech,” she wrote.

hong kong independence
Photo: Hong Kong National Party.

Petersen suggested that the Hong Kong government should only propose additional legislation on the basis of Article 23 after universal suffrage had been fully implemented, and ensure that any proposed legislation fully complies with the International Covenant on Civil and Political Rights and the rule of law principle.

“The government should ask the Law Reform Commission to conduct a study reviewing Hong Kong’s existing laws… for compliance with the ICCPR. This would help to restore Hong Kong’s reputation as an open and free society that respects the rule of law,” she wrote.

“This would show good faith by the local government and do far more to dampen desires for independence than any legislation enacted under the umbrella of Article 23.”

Kris Cheng is a Hong Kong journalist with an interest in local politics. His work has been featured in Washington Post, Public Radio International, Hong Kong Economic Times and others. He has a BSSc in Sociology from the Chinese University of Hong Kong. Kris is HKFP's Editorial Director.