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Basic rights threatened as law enacted, critics charge

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HONG KONG — When Britain returned Hong Kong to Chinese rule in 1997, Beijing assured the former colonial power that civil liberties in the city would be preserved.

On Saturday, Hong Kong enacted a measure that critics charge will further stifle free expression in a city that until recently was known for its freewheeling style, aggressive media and politically active populace.

The bill, called the Safeguarding National Security Ordinance but also referred to as the Article 23 law, took effect following unanimous approval earlier this week by Hong Kong’s opposition-free legislature, where it was deliberated over and passed in a record 11 days.

Article 23 is designed to supplement an earlier national security law Beijing imposed on Hong Kong in 2020, one that critics say supercharged the erosion of civil liberties here.

Read more NBC News coverage of Hong Kong

“This is the bill that basically creates crimes against everything,” Kevin Yam, a senior fellow at Georgetown University’s Center for Asian Law, told NBC News in an interview from Australia.

Yam is one of 13 overseas pro-democracy activists accused of national security offenses by Hong Kong authorities, which are offering bounties of 1 million Hong Kong dollars ($128,000) on each of them for information leading to their arrest.

“It is basically whatever they say, and whatever they want it to be,” Yam said of the Article 23 legislation. “And the problem with this compared with the National Security Law is that while it’s vague in many areas, it also covers a lot more ground.”

In some ways, critics say, Article 23 could have an even bigger impact on free expression in Hong Kong than the 2020 law.

With the new local legislation, Yam said, “we are basically seeing the Hong Kong government trying to slam shut the really last vestiges of room for criticizing it.”

Government touts stability

In contrast, Hong Kong’s top leader, John Lee, said the new law would “bring safety to society” after huge and sometimes violent anti-government protests in 2019.

“With safety comes stability; with stability comes prosperity,” he said in signing the bill late Friday before it took effect at midnight local time. “A safe and stable environment is crucial to the success of business activities and enterprises.”

The ordinance fully implements constitutional responsibilities stipulated under Article 23 of the HKSAR Basic Law, and is considered crucial for fixing loopholes and weak links in the HKSAR's system on protecting national security.
Hong Kong’s Legislative Council passed the Article 23 legislation in a unanimous vote on Tuesday.Xinhua News Agency / Xinhua News Agency via Getty Ima

Regina Ip, a senior Hong Kong official, said the legislation was mostly about updating and modernizing existing laws, many of which are left over from British colonial times.

It will “have minimal impact on most people in Hong Kong,” and is aimed only at those who have “ill intent,” Ip said in an interview Friday.

Hong Kong was required to enact the Article 23 legislation under its Basic Law, a mini-constitution that took effect in 1997. It focuses on five types of crimes: treason, insurrection, theft of state secrets and espionage, sabotage that endangers national security, and external interference.

“I am confident that very few prosecutions will be made, if at all,” said Ip, a veteran Hong Kong politician who resigned in 2003 after a protest by 500,000 of Hong Kong’s 7.5 million people forced the government to withdraw its first attempt to enact Article 23 legislation.

Ip said that “constructive criticisms” have not been criminalized, and that “one of the guiding principles” of Article 23 was to ensure Hong Kong’s fundamental rights and freedoms.

Hong Kong officials have accused Western governments of hypocrisy, saying their national security provisions are in line with those adopted in countries such as Australia, Britain and Singapore.

But that comparison is misleading, said Eric Yan-ho Lai, a research fellow at the Georgetown Center for Asian Law, as those countries have stronger democratic protections “to check and scrutinize executive government abusing powers on the ground of safeguarding national security.”

Article 23 is “a strong legal instrument for the government to enhance its surveillance and control over Hong Kong, and to further cut ties between the local community and the international community,” he said.

In a statement on Friday, U.S. Secretary of State Antony Blinken said the law “will have broad implications for the people in Hong Kong as well as U.S. citizens and companies operating there.”

He also expressed concern that, as with the 2020 national security law, Hong Kong authorities could seek to use Article 23 against individuals and companies whether they are in Hong Kong or not.

United Nations rights chief Volker Türk also criticized the law, as well as its rushed adoption, calling it “a regressive step for human rights in Hong Kong.”

Türk said the law’s “external interference” provisions, which only vaguely define the meaning of “external force,” could even deter Hong Kongers from engaging with international human rights organizations and U.N. rights bodies.

‘Tone has darkened’

Combined with the malaise in the mainland Chinese economy, with which Hong Kong’s fortunes are closely tied, and U.S.-China tensions that have Hong Kong caught in the middle, the Article 23 legislation has also raised questions about whether the city can retain its status as an international business center.

Last year, Hong Kong lost its position as the world’s freest economy to Singapore in an annual ranking by the Fraser Institute, a think tank in Canada. It had topped the list since the rankings began in 1970.

Hong Kong officials point out the city is still ranked second. But the authors of the report said its dethroning was “an example of how economic freedom is intimately connected with civil and political freedom,” and that Hong Kong’s score is likely to only fall further.

Stephen Roach, a senior research scholar at Yale Law School’s Paul Tsai China Center and the former chairman of Morgan Stanley Asia, said “the tone has darkened” in Hong Kong since the protests in 2019.

In his interactions with business people, students and academics, “there’s a pervasive sense of weariness,” said Roach, who lived in Hong Kong from 2007 to 2012 and has continued to visit since then.

“I always get asked the question in my presentations or discussions, what do you think of the future of Hong Kong?” he said. “That question was never raised when I lived there or in the years immediately after I returned.”

Roach caused a stir here with two recent commentaries in the Financial Times and the South China Morning Post, the former of which was headlined, “It pains me to say Hong Kong is over.” At the time he wrote it, he said, Hong Kong’s Hang Seng Index was down almost half from 2021, returning to its level at the time of the 1997 handover.

Hong Kong’s defenders argue that the city has always bounced back from any challenge it has faced, including pro-Communist riots in 1967, the Asian financial crisis of 1997, and the public health crises of SARS and Covid-19.

“Just because there’s been resilience in the past, there’s no guarantee that will be the case in the future,” said Roach, author of the 2022 book “Accidental Conflict: America, China, and the Clash of False Narratives.”

Lai and Yam, meanwhile, warned the new legislation could have profound implications for international businesses in the city.

Whereas the main impact of the 2020 national security law was loss of talent, as spooked foreign companies moved operations out of the city and some skilled professionals left on their own, Yam said Article 23 pertains more directly to the way businesses operate.

The new law “very clearly talks about things like extending mainland Chinese concepts of state secrets to Hong Kong, state secrets being one of those issues that international businesses have had a lot of trouble with in China,” he said.

Some business groups welcomed the legislation, however.

It will “make Hong Kong a safer destination for local and foreign businesses and professionals operating here,” the Hong Kong General Chamber of Commerce said.

The group added that it hoped the government would “continue to clarify any misinterpretation or misconceptions” about the law.

Johannes Hack, president of the German Chamber of Commerce in Hong Kong, said the ability to do business in Hong Kong “probably isn’t going to be impacted all that much.”

While companies may seek additional legal advice, he said, they already made adjustments after Beijing’s national security law was imposed in 2020.

The bigger concern, he said, “is that our shareholders in Germany, when they think of Hong Kong, we want them to think of Hong Kong as it still is today, quite a different place from mainland China.”

“It may have changed over the past few years, but it’s still distinctly different,” he said.

Hack cautioned, however, that “the proof of the pudding is in the eating.”

“If there were to be prosecutions or even rumored prosecutions under Article 23, then I think obviously the business community will watch that closely and will see what impact those potential prosecutions might have on their business dealings,” he said.

“But until that day, I think we’re fairly comfortable in saying this is a different place.”

The European Chamber of Commerce in Hong Kong declined to comment. The American Chamber of Commerce in Hong Kong did not respond to emailed requests for comment.

Ambivalence and fear

The large-scale protests that put a stop to Article 23 the last time the government proposed it would hardly be possible in today’s Hong Kong, where the vast majority of pro-democracy figures are in jail, living in self-exile or have resigned from politics.

Some residents reacted to its passage with ambivalence.

“Some would feel that they now have less free speech and freedom. However, those who prefer safety and a stable life might welcome it,” said student Cheng Chung Yau, 21.

Others who did not wish to be named lamented the tightening of government control and the shrinking space for expression.

Regarding whether Hong Kong is “over,” Roach, the former chairman of Morgan Stanley Asia, said, “What’s over to me is not the city itself, but what the city’s stood for historically.”

The dynamism and energy long associated with Hong Kong and its free market, he said, “I think is over for the foreseeable future.”

“Whether there’s a phoenix-like resurrection, that remains to be seen,” he said. “But the Hong Kong that I knew and lived in and loved, and still love, that character has really been drawn into serious question.”

Jennifer Jett reported from Hong Kong, Janis Mackey Frayer reported from Beijing and Mo Abbas reported from London.



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