HKSAR's Article 23: Upholding constitution amid international scrutiny

Editor's note: Zhu Zheng, a special commentator for CGTN, is an assistant professor specializing in constitutional law and politics at the China University of Political Science and Law. The article reflects the author's opinions and not necessarily the views of CGTN. 

On February 28, 2024, the United States issued a press statement on its State Department website regarding Hong Kong's proposed Article 23 Legislation. The statement expressed U.S. concerns about the legislation's potential impact on American citizens, investments, and companies in Hong Kong. The U.S. criticized the draft for its vaguely defined provisions and purported extraterritorial reach, suggesting that such legislation would violate China's international commitments and undermine the "One Country, Two Systems" framework.

In response, Chinese foreign ministry spokesperson Mao Ning criticized the U.S. for its political manipulation and double standards. Mao emphasized that it is the constitutional responsibility of the Hong Kong Special Administrative Region (HKSAR) to enact legislation under Article 23 of the Basic Law of the HKSAR to safeguard national security.

It is important to understand the context of Article 23 of the Basic Law, which mandates the HKSAR to enact laws to prohibit acts of treason, secession, sedition and subversion against the Central People's Government and HKSAR. Despite this requirement, Hong Kong has yet to fulfill its duty to enact such legislation since the handover of sovereignty in 1997.

The existing Hong Kong National Security Law enacted in 2020, while providing a national security framework, is seen as a national law rather than a local one. Therefore, the Legislative Council of Hong Kong is still obligated to enact a local national security law under Article 23 of the Basic Law.

Contrary to the U.S. assertion, enacting national security legislation would not violate China's international commitments. The Basic Law explicitly allows for the enactment of such legislation, provided it meets the requirements of the Basic Law and does not breach the promises made in the Sino-British Joint Declaration.

The need for additional national security legislation in Hong Kong is not unprecedented. Similar laws were in force during the British colonial period, although they were not strictly enforced after 1945. The Emergency Regulations Ordinance (ERO) from the colonial period, which served as a local national security bill, remains in force in Hong Kong.

The historical perspective and recent events, such as the 2019-2020 Hong Kong protests and increased threats to national safety and interests, highlight the importance of enacting national security legislation. John Lee, chief executive of the HKSAR, in his statement on April 12, 2022, indicated that implementing security legislation under Article 23 of the Basic Law would be a top priority for him, suggesting that the law may be passed soon.

Moreover, even the United States itself would enact a national security law. Furthermore, the U.S. has the National Security Agency's (NSA) surveillance programs. The programs have been a source of controversy and concern regarding national security laws and their impact on human rights. One notable example is the NSA's bulk collection of Americans' phone records under Section 215 of the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act).

This program, which was revealed by whistleblower Edward Snowden in 2013, allowed the NSA to collect metadata from millions of Americans' phone calls, including the numbers dialed and the duration of the calls. While the program was justified as a counterterrorism measure, it raised significant privacy and civil liberties concerns.

While the U.S. is justified in expressing concerns about its interests in Hong Kong, its criticism of Hong Kong's proposed Article 23 Legislation is unfounded. Hong Kong's efforts to enact national security legislation are consistent with its constitutional duty and historical practices. The U.S. should mind its own business and consider how to strike a balance between safeguarding national security and protecting human rights.

Overall, the U.S. should recognize Hong Kong's legitimate efforts to safeguard its national security and engage constructively with the HKSAR government and China in fighting against national security threats.

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