Rebuttal / Frequently Asked Questions

Safeguarding National Security: Basic Law Article 23 Legislation

Rebuttal

Foreword:
Since the launch of the public consultation, we have received many constructive comments from members of the public, for which we are very grateful.
However, some people have deliberately misinterpreted the content of the consultation document or spread rumours that are totally untrue. To prevent members of the public from being misled, we would like to set the record straight by rebutting these rumours.

Response and Rebuttal Team

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Rumour 1: The offences under Basic Law Article 23 legislation have retrospective effect

Truth:

According to Article 12 of the Hong Kong Bill of Rights Ordinance, the offences under the legislation to be enacted in this legislative exercise have no retrospective effect on acts committed before the commencement of the new legislation.

Rumour 2: Defendants charged with offences under the Basic Law Article 23 legislation will be sent to the Chinese mainland for trial

Truth:

Such defendants will not be sent to the Chinese mainland for trial.
Article 55 of the Hong Kong National Security Law (on the exercise of jurisdiction over a case concerning offence endangering national security by the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region) is only applicable to the four categories of offences stipulated under the Hong Kong National Security Law. It is not applicable to the offences to be enacted under the Basic Law Article 23 legislation.

Rumour 3: As the Hong Kong National Security Law is already in place, it is not necessary to enact Basic Law Article 23 legislation to grant additional powers

Truth:

This remark has disregarded the constitutional duty of the HKSAR: of the seven types of acts which the HKSAR shall enact laws to prohibit as prescribed under Article 23 of the Basic Law, the Hong Kong National Security Law only provides for secession and subversion against the Central People’s Government. Existing local laws (e.g. the Crimes Ordinance, the Official Secrets Ordinance and the Societies Ordinance) only cover some of these acts. There is a need for improvement.
Also, there is indeed a practical need to enact the legislation. During the Hong Kong version of the “colour revolution” in 2019, rioters committed evil acts under the banners of “Hong Kong independence” and “revolution”. There were a series of large-scale riots, arsons and attacks, leading to the deterioration of law and order. The consequences were unbearable to the society. International landscape is ever-changing, and in fact, national security risks exist every day. Hostile elements are still watching out for opportunities to advance their cause. Therefore, we must complete legislation on Article 23 and improve laws relevant to safeguarding national security, so as to better cope with the constantly arising national security risks and threats.
Every country will, from time to time, examine the development of the social situation and international landscape, and formulate new or amend existing laws to effectively cope with new national security risks.

Rumour 4: Article 23 of the Basic Law targets the media/foreign investors

Truth:

What the legislation targets are acts and activities endangering national security. The HKSAR law enforcement agencies have been taking law enforcement actions based on evidence and strictly in accordance with the law in respect of the acts of the persons or entities concerned, and have nothing to do with their occupation, background or political stance.
Background or occupation, such as the media sector, foreign investors, etc. are also not elements of the proposed offences.
Article 23 legislation is ultimately for better safeguarding the fundamental rights and freedoms of HKSAR residents and other people in the HKSAR, and ensuring that the properties and investments in the HKSAR are protected by law.

Rumour 5: Making negative comments on HKSAR’s economy will constitute the offence of sedition

Truth:

No one will commit the offences relating to “seditious intention” by merely making well intentioned comments about the Government.
The offence of “seditious intention” mainly targets the intention to induce hatred against the Government and covers, for example, inciting any other person to do a violent act in the HKSAR, or to do an act that does not comply with the law of the HKSAR. [See paragraph 4.8 of the Consultation Document for details]
The legislative proposal provides for the circumstances that do not constitute “seditious intention”. Making reasonable and genuine criticism of government policies based on objective facts, or pointing out issues, offering views for improvement, etc. does not constitute an offence of sedition. [See paragraph 4.8 of the Consultation Document for details]

Rumour 6: The offence of “unlawful disclosure of information that appears to be confidential matter” targets the media

Truth:

The proposed offence applies to public officers or government contractors, but not the media. [See paragraph 5.12 of the Consultation Document for details]
The proposed offence aims to prevent and impose punishment for acts of disclosure by any public officer or government contractor of information that appeared to be confidential in his or her possession by virtue of his or her capacity as a public officer or a government contractor, regardless of whether the relevant information is true or not, with intent to endanger national security.

Rumour 7: Local organisations accepting financial aid from a foreign country will be prohibited from operation upon enactment of the legislation

Truth:

The existing provisions relating to societies and the provisions relating to local organisations under the legislative proposals do not prohibit societies or local organisations from accepting financial aid from foreign organisations across the board.
The crux of the matter is whether the local organisation concerned is a “political body” (i.e. a political party, or an organisation which promotes or prepares a candidate for an election), and whether the foreign organisation which provides the financial aid is a “foreign political organisation” (e.g. a government of or a political party in a foreign country, or its agent).
If the local organisation is not a “political body” , or the foreign organisation which provides the financial aid is not a “foreign political organisation”, the local organisation concerned will not be prohibited from operation only because it receives financial aid from a foreign organisation.
An organisation with the objective of promoting environmental protection, charities, etc., which do not engage in activities endangering national security, will by no means be affected by the legislation on Article 23.

Frequently Asked Questions

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Question 1: What is the Basic Law Article 23 legislation?

Article 23 of the Basic Law stipulates that the Hong Kong Special Administrative Region (HKSAR) 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 HKSAR, and to prohibit political organisations or bodies of the HKSAR from establishing ties with foreign political organisations or bodies. The Basic Law Article 23 legislation refers to the enactment of local legislation to implement Article 23 of the Basic Law.
We must complete the Basic Law Article 23 legislation as early as possible, so as to fulfil this constitutional duty.
When legislating for Article 23, the HKSAR is duty‑bound to implement the duties and obligations under the 5.28 Decision [Note 1] and the Hong Kong National Security Law (HKNSL) to improve the legal system and enforcement mechanisms for safeguarding national security in the HKSAR, thereby safeguarding national security effectively.

Note 1: Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security on 28 May 2020 (“5.28 Decision”).

Question 2: What does the consultation have to do with me?

National security is essential for the prosperity and stability of society as well as for its people to live and work in peace and contentment. The implementation of the legislation on Article 23 of the Basic Law protects national security from threats, thereby creating a stable environment in which people can live and work in peace and contentment, enterprises can invest with confidence, sustain its development. The enactment of legislation on Article 23 is closely related to the well-being of all Hong Kong people.
Through this consultation, we would like to invite the Hong Kong community to express views on our legislative proposals and tender suggestions in safeguarding national security.
We believe that after completing legislation on Article 23 and refining laws relevant to safeguarding national security, Hong Kong can strive to spur economic development and improve people’s livelihoods in the future, and advance to the new stage from stability to prosperity.

Question 3: Why is there a need to legislate on Article 23 of the Basic Law even with the presence of the HKNSL?

Enacting local legislation on Article 23 of the Basic Law and refining laws relevant to safeguarding national security are the constitutional responsibilities of the HKSAR. Article 3 of the 5.28 Decision and Article 7 of the HKNSL reaffirm the need for the HKSAR to fulfill these constitutional responsibilities as soon as possible.
While the Hong Kong version of “colour revolution” in 2019 subsided, substantial risks remain. In addition, international landscape is ever-changing, and risks endangering national security exist every day. To cope with constantly arising national security risks and threats, we must seize the opportunity to legislate as soon as possible.
The four categories of offences provided for under Chapter III of the HKNSL, namely the offences of secession, subversion, terrorist activities and collusion with a foreign country or with external elements to endanger national security, are directed at the most prominent acts and activities endangering national security in the Hong Kong version of “colour revolution” in 2019. Among them, the offences of secession and subversion have dealt with two of the seven types of acts which the HKSAR shall enact laws to prohibit as prescribed in Article 23 of the Basic Law [See response to Question 1].
The HKSAR has a duty, as well as a practical need, to complete legislation on Article 23 of the Basic Law to prohibit those acts and activities endangering national security other than the four categories of offences provided for under the HKNSL.

Question 4: How long is the consultation period? How can members of the public express their views?

Members of the public may send their comments during the period from 30 January 2024 to 28 February 2024 by post, email or fax.
The legislation on Article 23 of the Basic Law has been under discussion for over 20 years. Organisations and individuals from different sectors of the community have already had a lot of extensive and in-depth discussions on matters relating to acts endangering national security as prescribed in Article 23 of the Basic Law. Since the promulgation and implementation of the HKNSL, we have accumulated practical experience in safeguarding national security. There are also considerable amount of relevant laws in foreign countries which we can draw reference. All these have laid a good foundation for this consultation and legislative exercise to be conducted in an effective manner.
There is now a pressing need for us to carry out the consultation efficiently. We must fulfil our constitutional duties which are still outstanding as soon as possible, while ensuring that Hong Kong has adequate capability to cope with the national security risks and threats at present and in the future. With a stable society, we can then focus and work together to boost the economy, improve people’s livelihood and revitalise Hong Kong.

Question 5: Will reference be made to the laws on safeguarding national security in foreign countries?

Many common law jurisdictions, including western countries such as the United States, the United Kingdom, Canada, Australia and New Zealand, and Singapore have enacted various laws to safeguard national security. For details, please refer to the examples set out in the Consultation Document, in particular paragraphs 2.2 to 2.4 and Annex II.
We will make appropriate reference to the legislative experience of other countries, based on the practical need of the HKSAR to cope with the past, present and future national security risks that can be foreseen.

Question 6: Will the legislation have any impact on the rights and freedoms of members of the public?

Upon completion of the Basic Law Article 23 legislation, the rights and freedoms enjoyed by members of the public will be better protected.
The legislation for safeguarding national security only targets an extremely small minority of people who endanger national security, with the aim to protect the lives, properties, freedoms and rights of the people of Hong Kong.
Article 4 of the HKNSL stipulates that human rights shall be respected and protected in safeguarding national security in the HKSAR. The rights and freedoms which HKSAR residents enjoy under the Basic Law, and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law. The enactment of legislation for safeguarding national security shall adhere to the principles relating to the protection of human rights.
It should be noted that according to the Basic Law and the provisions of relevant international covenants, certain rights and freedoms may be subject to restrictions that are provided by law and necessary for pursuing legitimate aims such as the protection of national security.
Article 5 of the HKNSL states that the principle of the rule of law shall be adhered to in preventing, suppressing, and imposing punishment for offences endangering national security. The legislative proposals will clearly define the elements of the offences (including the actus reus and mens rea of the offences) to ensure that they precisely target acts endangering national security. Consideration will be given to the provision of appropriate exceptions and defences to ensure that the restrictions on human rights and freedoms are reasonable, necessary and proportionate. Members of the public do not need to worry about unwittingly violating the law.

Question 7: What is “national security”?

Article 2 of the National Security Law of the People’s Republic of China defines “national security” as follows: “[N]ational security refers to the status in which the State’s political regime, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major interests of the State are relatively free from danger and internal or external threats, and the capability to maintain a sustained status of security."
The same set of national security standards should apply throughout a country. The HKSAR, as an inalienable part of the People’s Republic of China, is no exception. The same set of national security standards should also apply to the HKSAR.

Question 8: Will members of the public commit the offences inadvertently?

In formulating the offence, we will precisely target acts endangering national security and clearly define the elements and penalties of the related offence. The prosecution also has the burden to prove beyond reasonable doubt that the defendant had the actus reus and mens rea of the offence before the defendant may be convicted by the court. Law‑abiding people will not unwittingly violate the law.

Question 9: Will the legislation for Article 23 affect our regular exchanges with foreign countries?

Hong Kong is an international city having close contact and communication with other countries, regions and relevant international organisations. These normal interactions are protected by the Basic Law and the local laws of the HKSAR. The Basic Law Article 23 legislation seeks to prevent, suppress and punish acts and activities endangering national security, which are distinctly different from normal external exchanges. Law-abiding people will not unwittingly violate the law.

Question 10: Will the legislation have retrospective effect?

The offences created by this legislation will not have retrospective effect. This is in line with Article 12 of the Hong Kong Bill of Rights.

Question 11: Will the legislation affect Hong Kong’s economic freedom and its status as an international financial centre?

Although Hong Kong has experienced severe challenges of social unrest and the COVID‑19 pandemic over the past few years, its financial market has all along remained stable and operated orderly with vibrant trading activities. The stock market and the banking system of Hong Kong continue to operate normally. All these reflect that the market is full of confidence about Hong Kong’s financial environment.
Since the implementation of the HKNSL, investors’ confidence in Hong Kong has not been shaken by the HKNSL and the development of the financial industry has been very prosperous.
Enacting legislation on Article 23 of the Basic Law can further improve our legal system in safeguarding national security, rendering the business environment in the HKSAR more stable and its law and order more secured. It is conducive to investment in the HKSAR and the development of its financial market.

Safeguarding National Security Ordinance and
other relevant documents

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