In recent years, accompanied by rapid changes in the international landscape and advancements in technology, countries worldwide, including the United Kingdom and the United States, have enacted and updated laws related to national security. And when it comes to law enforcement actions and legislative procedures concerning national security, decisions are often swift and resolute, leaving no room for hesitation or delay.
As an international metropolis, Hong Kong should not lag behind other common law jurisdictions. It is essential to establish effective laws to safeguard national security, and to ensure genuine peace of mind for residents.
International human rights standards met
Both the Basic Law and the Hong Kong Bill of Rights Ordinance clearly outline provisions protecting freedom of speech, peaceful assembly, procession and demonstration for Hong Kong residents. The International Covenant on Civil and Political Rights (the Covenant) also applies. Article 19(1) of the Covenant guarantees rights such as freedom of speech for residents, while Article 19(3) specifies that these rights are not absolute. Necessary restrictions can be imposed to protect national security, public order, public health and morals.
Since World War II, many countries have endured the hardships of conflict. To maintain world peace, international law emphasizes respect for national sovereignty. In 1984, the United Nations Judicial Committee promulgated the Siracusa Principles, which allow for limitations on civil rights protected by the Covenant when faced with threats to national security, including risks to people’s lives, political independence and territorial integrity. The UN reiterates the importance of respecting the territorial integrity of sovereign states.
Clearly, international law stipulates that rights and freedoms must be defined within legal boundaries. Individual liberties and rights can be reasonably restricted when it is necessary to protect national security, public safety, public order, public health and morals. Common law also provides numerous precedents, demonstrating that constitutional rights — such as freedom of speech, press and assembly — are not absolute. These freedoms and rights must be balanced, considering both individual interests and public interests. Governments and legislative bodies all over the world must strike a balance by formulating laws that best serve society after considering various public interests.
In 2015, the landmark Hong Kong case Hysan Development Co Ltd vs Town Planning Board (2016) 19 HKCFAR 372 clarified the proportionality test under common law. It outlined four steps for balancing public interest and individual rights, emphasizing that courts must consider public interests when restricting individual rights. In Hysan, the court laid down the following principles: The limitation pursues a legitimate aim, is rationally connected thereto, is no more than necessary to achieve that aim, and reflects a reasonable balance between the general interest of the community and protection of the individual’s fundamental rights. This case clearly underscored that even when exercising constitutional rights — such as freedom of speech, press and assembly — individuals’ actions are not absolute and must be weighed against the greater public interest.
The more one understands the strength of local legislation, the more one will find this bill deserves heartfelt support from local and international communities. I believe this Article 23 legislation plugs a significant loophole in the Basic Law. Simultaneously, we showcase Hong Kong’s unique characteristics as an international city that operates under common law
Some critics argue that “local legislation under Article 23 violates human rights”, but their criticisms do not align with the rule of law or international norms. On the contrary, the proposed legislation provides a clearer framework for balancing individual rights and public interests, ensuring that the exercise of rights aligns with the rule of law. Clear laws provide residents with well-defined boundaries, fostering confidence across various sectors. Living in society requires considering not only self-interest but also the interests of others. Residents cannot harm public interests or disrupt the functioning of society while exercising one’s freedoms. Laws exist to protect the rights of all residents in civilized societies — a consensus shared by every civilized community. Thus, every law strikes a good balance of community interest and individual interest.
Whether in international law, common law, or civil law jurisdictions, upholding the rule of law means balancing individual rights and public interests. National security is a significant public interest, and without a nation, there is no home. One just needs to look at the ongoing battles worldwide to see this truth.
Awakened Hong Kong public support Article 23
One could say that, in 2003, it was because of residents’ unfamiliarity with the concept of national security and the slanderous attacks from anti-China forces that Hong Kong failed to legislate the local laws under Article 23; but today, Hong Kong society has reached a consensus that Article 23 legislation should be completed as soon as possible after experiencing the chaos in 2019.
Hong Kong residents now understand that completing Article 23 legislation is not only a move to fulfill the Hong Kong Special Administrative Region’s constitutional responsibility; it also aligns with global trends and reciprocates the central government’s trust in the HKSAR.
Worldwide, no central governments will authorize a local government to pass laws in relation to national security. Only the HKSAR and Macao SAR are given such a privilege. The Hong Kong public is now aware that by virtue of local legislation, common-law practice will be adopted in enforcing the provisions of the ordinance to be enacted under Article 23. In other words, Hong Kong courts will adjudicate and interpret the ordinance according to common law practice. Thus, Article 23 legislation is a move to adhere to our common law practice of Hong Kong.
Accurate legislation that keeps pace with the times is crucial
Under the framework of “one country, two systems” and the Basic Law, the Article 23 legislation will complement the existing law, the National Security Law for Hong Kong (NSL), which covers only two of the seven offenses listed in Article 23. It aims to create a comprehensive legal framework for safeguarding national security, ensuring human rights and upholding the rule of law.
The proposed legislative recommendations for the Article 23 legislation are more comprehensive and precise than they were in the 2003 version. They address the shortcomings of the 2003 version. Drawing from the experiences of the past 20 years and considering global changes and technological advancements, this legislation is more attuned to current needs.
When weaving the fabric of national security protection, we must recognize that technological advancements have progressed rapidly since the Basic Law was passed in 1990. The types of national security threats faced by the country in 2024 are vastly different from those at the time of the Basic Law’s enactment. Other common law jurisdictions have plugged their legislation loopholes much earlier.
The Article 23 legislation has been long overdue as the Basic Law has been in force for 26 years.
I have carefully read the text of the bill, and I believe it is well-crafted, incorporating feedback from various sectors. For instance, the defense of specific disclosure, which many people are concerned about, is clearly outlined in several offenses. It emphasizes reasonable actions taken after an offense occurs and underscores criminal intent. In many aspects, the draft bill takes into account practices in other common law countries, and it places a strong emphasis on human rights protection compared to those countries. Notably, Section 2 of the bill explicitly makes references to international human rights conventions, which makes the draft bill clearer and more affirmative in the protection of human rights than in countries like the UK and the US. The more one understands the strength of local legislation, the more one will find this bill deserves heartfelt support from local and international communities. I believe this Article 23 legislation plugs a significant loophole in the Basic Law. Simultaneously, we showcase Hong Kong’s unique characteristics as an international city that operates under common law.
The author is a member of the Hong Kong Basic Law Committee of the Standing Committee of the National People's Congress and Legislative Council.
The views do not necessarily reflect those of China Daily.
