Amnesty International submits the following comments on the Hong Kong Special Administrative Region (HKSAR)’s Safeguarding National Security: Basic Law Article 23 Legislation Public Consultation Document (hereafter Consultation Document or CD), issued by the Security Bureau on 30 January 2024 and open for public comment until 28 February 2024.
Article 23 of the Basic Law states: “The 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.”
As part of its work, Amnesty International globally promotes the adoption of legal instruments that protect internationally recognized human rights. This brief submission contains Amnesty International’s analysis of the extent to which legislative proposals included in the Consultation Document are compatible with Hong Kong’s international human rights obligations, whether embodied in treaties and other instruments, or under customary international law. Amnesty International hopes that these comments will be considered for any draft bill under Article 23. Amnesty recognizes that every government has the right and duty to protect its citizens, and that some jurisdictions have specific security concerns. But these may never be used as an excuse to deny people the right to express different political views and to exercise their other human rights as protected by international legal standards.
In this submission, Amnesty International focuses on concerns with the consultation process, overarching concerns, including the ongoing implementation of the Hong Kong National Security Law (NSL) and the
chilling effect it has had on freedoms of expression and association, the new or proposed offences, and proposed changes to the legal system and enforcement mechanisms. The issues and provisions cited below are illustrative and do not purport to constitute a comprehensive human rights analysis of the questions
posed in the Consultation Document or otherwise discussed in connection with the proposed Article 23 legislation.
The proposals that have been put forward by the government go far beyond the requirements according to the Basic Law to enact Article 23 legislation. Amnesty International also regrets that the Hong Kong government has not taken this opportunity to modernize Hong Kong legislation by removing outdated colonial legislation and instead further entrenched some colonial offences.
Amnesty International urges the Hong Kong government to halt the current legislative process because it is being conducted in an environment where meaningful public consultation is not possible, the proposals lack legal certainty, demonstrated necessity, or proportionality, and there are not adequate safeguards to ensure compliance with human rights as the process moves forward. In the event that the government nonetheless continues the current legislative process under Article 23 of the Basic Law, Amnesty urges the government to ensure that any new legislation will be compatible with international human rights law and standards and human rights obligations under Hong Kong law.
- OVERVIEW
- GENERAL CONCERNS WITH CONSULTATION PROCESS
- HONG KONG’S INTERNATIONAL HUMAN RIGHTS OBLIGATIONS
- HUMAN RIGHTS SAFEGUARDS AND REVIEW BY COURTS
- OVERARCHING CONCERNS
- CONCERNS ON PROPOSED NEW OR AMENDED OFFENCES
- CONCERNS ABOUT CHANGES TO LEGAL SYSTEM AND ENFORCEMENT MECHANISMS
- CONCLUSION
- RECOMMENDATIONS
- ANNEX