Hong Kong Basic Law Article 23

Hong Kong Basic Law Article 23 (Chinese: 香港基本法第二十三條) is an article in the Basic Law of Hong Kong. It states that Hong Kong "shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies."

Attempts to implement the article and create the Hong Kong national security law have seen protests, particularly in 2003 and 2020. In 2020 the mainland National People's Congress imposed a security law on Hong Kong under Article 18 of the Basic Law.

Background

Article 23 of the Basic Law (BL 23) states:

The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organisations or bodies from conducting political activities in the Region, and to prohibit political organisations or bodies of the Region from establishing ties with foreign political organisations or bodies.[1]

Similar laws had been in force during the British colonial period, but they had not been strictly enforced since 1945.[2] The Emergency Regulations Ordinance (ERO) from the colonial period remains in force, but in 2019 the Court of First Instance ruled that it was "not compatible with the constitutional order laid down by the Basic Law" due to its unchecked and wide scope. The Court of Appeal later varied this by permitting the Prohibition on Face Covering Regulation as reasonable and valid, but stated ERO regulations were "subject to judicial scrutiny."[3]

Before 1997, the British colonial government introduced the Crimes (Amendment)(No.2) Bill 1996 in an attempt to concretise the concepts of "subversion" and "secession" by confining them to actual violent conduct but of no avail. The bill was voted down in the elected Legislative Council of Hong Kong amid opposition from Beijing and thus left a vacuum in the present legislation.[4]

2003 National Security Bill
Main article: National Security (Legislative Provisions) Bill 2003

In February 2003, the HKSAR government proposed the National Security (Legislative Provisions) Bill 2003 to the Legislative Council which aimed to amend the Crimes Ordinance, the Official Secrets Ordinance and the Societies Ordinance pursuant to the obligation imposed by Article 23 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and to provide for related, incidental and consequential amendments.[5] The proposed bill caused considerable controversy in Hong Kong and a massive demonstration on 1 July 2003. In the aftermath, Liberal Party chairman James Tien resigned from the Executive Council and the bill was withdrawn after it became clear that it would not get the necessary support from the Legislative Council for it to be passed. The bill was then shelved indefinitely.[2]

After 2003

There were calls for reintroducing the national security bill after the 2003 setbacks from the pro-Beijing camp occasionally. After the Beijing interpretation of the Basic Law in November 2016 over the Legislative Council oath-taking controversy to eject two pro-independence legislators from the legislature on the basis that "[Beijing] will absolutely neither permit anyone advocating secession in Hong Kong nor allow any pro-independence activists to enter a government institution," Chief executive Leung Chun-ying said Hong Kong would enact Article 23 targeting the pro-independence movement in Hong Kong.[6]

The Director of the Liaison Office of the Central People's Government in Hong Kong Wang Zhimin accused pro-independence activists of "engaging in activities that sought to separate the motherland and subvert the national regime" and urged the Hong Kong government to enact national security legislation as he said "Hong Kong is the only place in the world without a national security legislation – it’s a major weakness in the nation’s overall security, and it has a direct impact on residents." Wang said without a national security law, "Hong Kong independence radicals have been challenging national sovereignty and security in recent years".[7]

Protests in 2019 and imposition of security law in 2020

The 2019–20 Hong Kong protests led to an increasing desire within some pro-Beijing lawmakers[8][9] for Hong Kong to legislate Article 23 of the Basic Law.[10] On 21 May 2020, the Chinese Government proposed a new law on national security regulations that may be enacted in Hong Kong under the provisions of Annex III of its Basic law. It may set up the legal framework to prevent and punish subversion, terrorism, separatism and foreign interference.[11][12] The following day, a dozen pan-democrat lawmakers marched to the Chinese Liaison Office to show their disapproval.[13]

On 30 June 2020 the mainland 13th National People's Congress and Standing Committee of the National People's Congress imposed a partially equivalent security law on Hong Kong covering secession and subversion under Article 18 of the Basic Law.[9][14] The areas of treason, sedition and theft of state secrets are not covered by the new Article 18 law, and remain to be implemented under Article 23 by the Hong Kong SAR.[9]

See also

References
  1. "Basic Law - Chapter 2". Hong Kong government. Archived from the original on 29 July 2010. Retrieved 20 March 2018.
  2. C. George Kleeman (2005). "The Proposal to Implement Article 23 of the Basic Law in Hong Kong: A Missed Opportunity for Reconciliation and Reunification Between China and Taiwan". The Georgia Journal of International and Comparative Law. 23 (3). Retrieved 30 June 2020.
  3. Gupta, Sourabh (17 June 2020). "Hong Kong National Security Law". Institute for China-America Studies. Retrieved 2 July 2020.
  4. Wong, Yiu-chung (2008). One Country, Two Systems in Crisis: Hong Kong's Transformation since the Handover. Lexington Books. pp. 69–70.
  5. "National Security (Legislative Provisions) Bill to be introduced into LegCo". Hong Kong government. 24 February 2003. Archived from the original on 20 March 2018. Retrieved 20 March 2018.
  6. Cheung, Tony; Lam, Jeffie; Ng, Joyce; Cheung, Gary (7 November 2016). "Hong Kong will move on controversial security law, CY Leung says, as Beijing bars independence activists from Legco". South China Morning Post. Archived from the original on 2 February 2018. Retrieved 20 March 2018.
  7. Cheung, Tony (15 April 2018). "Hong Kong is 'only place in the world without national security law', liaison office chief says". South China Morning Post. Archived from the original on 18 April 2018. Retrieved 17 April 2018.
  8. Davidson, Helen (15 April 2020). "China's top official in Hong Kong pushes for national security law". The Guardian. Retrieved 6 June 2020.
  9. Cross, Grenville (29 May 2020). "If Hong Kong had enacted national security laws on its own, Beijing wouldn't be stepping in". South China Morning Post. Retrieved 30 June 2020.
  10. "Hong Kong 'must not delay national security law'". South China Morning Post. 21 December 2019. Archived from the original on 19 April 2020. Retrieved 14 May 2020.
  11. "China law requires Hong Kong to enact national security rules as soon as possible". Reuters. 22 May 2020. Archived from the original on 24 May 2020. Retrieved 22 May 2020.
  12. "Hong Kong security law: What is it and is it worrying?". BBC News. 29 May 2020. Retrieved 6 June 2020.
  13. Editorial, Reuters. "Hong Kong lawmakers, activists condemn Beijing's national security law legislation | Reuters Video". www.reuters.com. Archived from the original on 24 May 2020. Retrieved 22 May 2020.
  14. Yuan, Dang (8 June 2020). "Hong Kong security law: What does China really intend?". Deutsche Welle. Retrieved 2 July 2020.
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