Article 23: how Hongkongers can have their say in national security
The concept of national security has undergone tremendous changes in recent years, in many cases becoming more sweeping than some ancient laws. We are no longer just talking about the king’s enemies or queen’s honour, but trade barriers, economic sanctions, hi-tech embargoes, and even academic and cultural exchanges.
Especially in the West, national security concerns seem to be everywhere and in every aspect of daily life. Yet people appear to have very little say in all this.
The UK in recent years has passed a spate of national security laws, giving the government alarming powers. Under the National Security Act 2023, on the secretary of state’s “reasonable” belief that someone is, or has been, involved in “foreign power threat activity”, that person can be detained up for to five years without notice or trial.
People walk along London’s Southbank, with Westminster, home to the UK Parliament, in the background on January 8. The UK has in recent years passed a spate of national security laws, giving the government alarming powers. Photo: EPA-EFE
Under the National Security and Investment Act 2021, approval of any acquisition of any UK entity or asset is required from the secretary of state if he “reasonably suspects” such an acquisition has given rise to or may give rise to “a risk of national security”.
Under the Telecommunications (Security) Act 2021, the secretary of state can also give “designated vendor direction” to a public communications provider if considered necessary in the “interest of national security”. Yet in none of these sweeping provisions is the government prepared to precisely define what constitutes “national interest” or “national security”.
In Singapore, under the Internal Security Act, the president, if satisfied that a person may act in any way “prejudicial to the security of Singapore” or the “maintenance of public order or essential services”, can, through an order made by the minister in charge, detain that person for up to two years, which can be renewed, and such an order is not subject to judicial review save for procedural requirements.
In the case of “Holder vs Humanitarian Law Project 2009”, the US Supreme Court ruled that, “given the sensitive national security and foreign relations interests at stake [ …] respect for the government’s factual conclusions is appropriate in light of the courts’ lack of expertise with respect to national security and foreign affairs, and the reality that efforts to confront terrorist threats occur in an area where information can be difficult to obtain, the impact of certain conduct can be difficult to assess, and conclusions must often be based on informed judgment rather than concrete evidence”.
In other words, it is for the administration to decide what is a matter of national security.
Whether you agree with this reasoning, such is the reality in matters of national security. One may argue that such sweeping government powers are tolerable in a democracy; but is one then saying that in a non-democratic country, the government must be powerless to protect its nation?
Where does this leave us with the proposed enactment of Article 23 legislation in Hong Kong? At the end of the day, the answer may lie with whether there are checks and balances to all government actions.
Such checks and balances may lie with a fully elected assembly or fiercely independent judiciary. We may not be blessed with the former but we have the latter. Not only that, but we are constitutionally safeguarded by the International Covenant on Civil and Political Rights as well as rule of law principles.
These safeguards are not only enshrined in our Basic Law but also formally incorporated into the national security law passed by Beijing in 2020, which has an overriding effect on all local laws. These safeguards provide a reasonable assurance that, unlike in the UK or Singapore, practically all administrative decisions affecting individual rights on national security issues are reviewable in our courts.
Chief Justice of the Court of Final Appeal Andrew Cheung Kui-nung leaves the stage after the ceremonial opening of the legal year on January 22, at the Hong Kong City Hall. Hong Kong continues to have a fiercely independent judiciary. Photo: Elson Li
Let’s not kid ourselves, the situation in Hong Kong will still come under attack by countries that see Beijing as the enemy, as shown by the UK government’s recent report on Hong Kong, which provoked a stern rebuke from the Chinese government. Be that as it may, these are not matters within our control.
What is within our control is the free expression of views in response to the consultation paper recently issued by the Hong Kong government on domestic national security legislation, and to comparable laws in other countries. After all, what is the worth of freedom of expression if one does not make full use of it on as important an issue as the enactment of a national security law?
Ronny Tong, KC, SC, JP, is a former chairman of the Hong Kong Bar Association, a member of the Executive Council and convenor of the Path of Democracy
