Man convicted of secession files first legal challenge against Hong Kong’s Article 23 law

But the Safeguarding National Security Ordinance, mandated under Article 23 of the Basic Law, the city’s mini-constitution, stipulates that a prisoner convicted of national security offences “must not be granted remission” unless the commissioner of correctional services is satisfied the move will not compromise national security.

In a writ made available for public inspection on Monday, Ma’s lawyers said authorities’ discretion bestowed by the new law was so wide and uncertain it was prone to abuse.

They also took issue with what they considered to be the retrospective implementation of the new rule, noting that Ma had been cleared for early release as early as February 24, a month before the ordinance took effect.

“Constitutional rights do not stop at the prison gates,” said the 50-page filing.

“If a person originally convicted for a national security offence can be cleared for release just a month earlier, but is then refused release under the new law, one must question what more does the new [rule] require, and whether those requirements are lawful.”

Known as the “second-generation Captain America” for dressing as the Marvel character in anti-government protests, Ma was convicted and jailed for promoting Hong Kong independence through the chanting of slogans in public and in media interviews.

The act is banned by the national security law imposed by Beijing in June 2020, which also criminalises subversion, terrorism and collusion with foreign forces.