Hong Kong Adopts New National Security Ordinance: Article 23

Hong Kong Adopts New National Security Ordinance: Article 23

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INSIGHTi

Hong Kong Adopts New National Security
Ordinance: Article 23
April 1, 2024
On March 23, 2024, the government of the Hong Kong Special Administrative Region (HKSAR)
promulgated an ordinance with the stated purposed of strengthening the “legal system and enforcement
mechanisms for the HKSAR to safeguard national security.” The Safeguarding National Security
Ordinance builds upon the People’s Republic of China’s (PRC’s or China’s) Law on Safeguarding
National Security in the HKSAR (NSL), passed in 2020 to assert greater central government control over
the HKSAR. HKSAR authorities justified the passage of the new Ordinance in terms of fulfilling their
“constitutional responsibility” to enact such legislation under Article 23 of Hong Kong’s mini-
constitution, the Basic Law. U.S. policymakers, including some Members of Congress, have expressed
concern about the Ordinance’s effect on rights and freedoms in Hong Kong. They also have considered
whether or not China’s assurances that it will respect Hong Kong’s distinct system (under the arrangement
known as “one country, two systems”) should continue to form a basis for U.S. policy toward Hong
Kong. (For additional information, see CRS Report R47844, Hong Kong Under the National Security
Law.)
Highlights of the New Ordinance
The Ordinance broadly defines national security offences as any offense “endangering national security
under the law of the HKSAR.” These offenses include the four types of offenses established by the NSL
and five new types of offenses (see Table 1). The Ordinance allows police to apply for extended pre-trial
detention, restrictions on suspects’ consultation with legal representatives, and restrictions on bail for
national security cases. It also authorizes punitive measures (including the termination of HKSAR
passports) against “absconders” overseas with pending warrants in the HKSAR and against individuals
who provide absconders with funds or financial assets.
Table 1. National Security Offenses Under the Ordinance and NSL
Safeguarding National Security Ordinance (2024)
National Security Law of the HKSAR (2020)
Treason
Secession
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Safeguarding National Security Ordinance (2024)
National Security Law of the HKSAR (2020)
Insurrection
Subversion
State secrets and espionage
Terrorist activities
Sabotage
Col usion with foreign countries and external elements
External interference

Source: “Safeguarding National Security Ordinance,” Government of the HKSAR Gazette, G.N. (E.) 6 of 2024, March 23,
2024.
The Ordinance states that several offenses have extraterritorial effect, indicating they may be applied to
persons for activities outside the HKSAR. Such offenses include “external interference” and “sabotage.”
Critics of the Ordinance, including organizations such as Amnesty International, note the Ordinance
includes a “new vague and broadly worded crime of ‘external interference,’” which they suggest “could
lead to the prosecution of activists for their exchanges with foreign actors.” Some international media
reports questioned the bill’s rapid promulgation—11 days after the its introduction and after one month of
public consultation. According to one analysis, the average duration of public comment periods in Hong
Kong between 2019 and 2021 was 76 days.
Selected Reactions to the Bill
The PRC’s Hong Kong and Macao Affairs Office lauded the passage of the Ordinance, stating that “to
protect national security is to protect ‘One Country, Two Systems,’ Hong Kong’s prosperity and stability,
and […] democratic freedoms…” HKSAR authorities claim feedback received during the consultation
period for the Ordinance was overwhelmingly (98.6%) positive.
Several local HKSAR organizations submitted comments during the consultation period. The Hong Kong
Bar Association called on the HKSAR government to ensure “a proper and careful balance […] between
the imperatives of national security and constitutional guarantees of human rights and the rule of law.”
The Hong Kong Journalists Association urged the HKSAR government “to provide sufficient protection
for the press in its draft bill and avoid causing irrevocable damage to press freedom.” Some Hong Kong
political parties aligned with the central government (e.g., the Democratic Alliance for the Betterment and
Progress of Hong Kong and the New People’s Party) have issued statements in favor of the Ordinance.
Some members of Hong Kong diaspora communities and critics of the Ordinance have held public
protests overseas.
A U.S. Department of State spokesperson stated that the United States is “alarmed” by the Ordinance’s
“sweeping” and “vaguely defined” provisions, adding that the Department is analyzing the legislation for
“what the potential risk could be to not just U.S. citizens but other American interests.” Other
governments—including those of the United Kingdom and Japan—also expressed concern. United
Nations High Commissioner for Human Rights Volker Turk “deplored the accelerated consideration and
adoption” of the Ordinance, which passed “despite detailed, serious human rights concerns raised with the
authorities by his Office and UN human rights mechanisms.”
Issues Facing Congress
Some Members of Congress have expressed concern over the passage of the Ordinance and its potential
chilling effect on the city’s autonomy and the rights and freedoms of its residents. Congress could
consider:

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• Appropriations. Congress could assess whether U.S. funding for (and the design of)
programs aimed at supporting civil society in Hong Kong and its growing diaspora meet
Congress’s objectives. The 117th Congress appropriated $9 million in programs for Hong
Kong. Congress could assess whether the new Ordinance poses risks for individuals and
organizations engaged with U.S. government-funded programs, and assess how programs
may respond to any such risks.
• Hong Kong Policy Act. The U.S.-Hong Kong Policy Act of 1992 (HKPA, P.L. 102-383,
as amended, 22 USC 5701), which guides U.S. policy toward the HKSAR, is based partly
on the predicate that Hong Kong would retain its “lifestyle and legal, social, and
economic systems” as distinct from mainland China. Congress could consider whether or
not relevant provisions of the HKPA merit clarification.
• Oversight of Sanctions. The U.S. government has imposed financial sanctions on 42
PRC and Hong Kong officials under E.O. 13936 “in connection with actions or policies
that threaten the peace, security, stability, or autonomy of Hong Kong.” Congress in its
oversight role could assess the administration’s implementation of sanctions and the
effectiveness of sanctions in advancing congressional objectives, including assessing any
impact they may have on official exchanges.

Author Information

Ricardo Barrios

Analyst in Asian Affairs

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