The Hong Kong Legislative Council unanimously voted in favour of the new Safeguarding National Security Bill on Tuesday. The bill will be gazetted and come into effect on March 23.
The bill consists of nine parts. It criminalises several national security offences that are listed in Article 23 of the Hong Kong Basic Law but not in the 2020 National Security Law. The bill also stipulates that criminal prosecution under this bill shall apply the criminal procedural rules that were previously tailored for national security offences in the 2020 National Security Law.
The new law also makes it an offence to encourage public officers to “abandon upholding the Basic Law and abandon the allegiance to the [Hong Kong Special Administrative Region (HKSAR)].” It also prohibits public officers from leaving the HKSAR with state secrets with intent to endanger national security or with recklessness as to national security.
The bill was passed with an amendment that empowers the Chief Executive in Council to specify a class of persons as “public officers” when the Chief Executive in Council reasonably considers it necessary to safeguard national security. The amendment reflected some lawmakers’ concerns that the original definition of “public officers” failed to target certain public organisations which “have an important bearing on the security of vital interests of the HKSAR.”
Both Chief Executive John Lee and the President of the Legislative Council Andrew Leung similarly stated that the enactment of the bill was a “historical moment in Hong Kong. They both claimed that the enactment is a cornerstone to security, stability and prosperity. Lee also emphasised that the bill strikes a balance between safeguarding national security and protecting human rights and freedom as section 2(b) of the bill explicitly said that the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights continue to apply.
Lee and Leung also addressed the bill’s swift legislation process. Previously on March 16, the government requested the Legislative Council to waive the 12-day prior notice requirement under the Hong Kong Legislative Council Rules of Procedures – Notice of Motions and Amendments. Lee contended that protests and violent incidents in the 2019 anti-extradition bill amendment protest indicated an urgency to safeguard national security. The 30-day public consultation and 12-day deliberation in the Legislative Council reflected the urgency. Lee also pointed out that the US’s Patriot Act was drafted 21 days after the 9/11 attacks to suggest that every country legislate swiftly to safeguard its national security.
However, the bill and its swift legislation generated concerns from international figures. Hong Kong Watch published a statement from a cross-party international coalition of 78 parliamentarians and public figures calling for supportive governments to unite against the “flagrant breach of the Basic Law of Hong Kong, the Sino-British Joint Declaration, and international human rights law.” Lord Patten of Barnes, the last British Governor of Hong Kong, argued that the bill is “[a]nother large nail in the coffin of human rights and the rule of law in Hong Kong and a further disgraceful breach of the Joint Declaration.”
In May 2020, the Chinese National People’s Congress Standing Committee (NPCSC) issued a decision, also known as the 5.28 NPCSC decision, to include the 2020 National Security Law into Annex III of the Hong Kong Basic Law. The decision also urged the Hong Kong government to fulfil its constitutional duty to enact its local legislation to safeguard national security. Hong Kong’s government repeatedly cited the NPCSC’s decision to support the bill.
