Thread by @SamuelBickett

1/ Hong Kong govt has just introduced its repressive and vast Article 23 legislation proposal after a very short, largely performative "consultation period." I'm out of the office this week, but wanted to provide an initial assessment of what stood out to me in my initial read.

2/ Let's start with how this law is going to be interpreted by the courts. Hong Kong law does after all still include many protections for internally-recognized human rights.

Like the NSL, the Article 23 legislation claims at the beginning that “human rights are to be respected” including the Basic Law, the ICCPR, and the ICESCR. This didn’t make any sense in the NSL, which blatantly violated these international human rights conventions, and it doesn’t make sense here.

But a bit further down, they slipped in a pretty big qualification…if any other laws conflict with the Article 23 legislation, they should be interpreted so as to favor A23’s “object and purposes.”

Since these other human rights protections all appear in other laws, this provision renders them largely meaningless. National Security trumps all.

3/ Every person with a “function” conferred by the HKSAR, from the Chief Executive to a doctor at a public hospital to the janitor at the Immigration Tower “must regard national security as the MOST important factor” in performing their job. What?

4/ Others have already noted the horrific increase in sedition penalties to 7-10 years from 2 years, for “inciting disaffection against”—i.e., criticizing—the government. But they’ve also added in this bit as constituting sedition. Under this, encouraging someone to, say, jaywalk, will now technically be punishable by 7-10 years in prison. I would imagine this is less an intentional addition than just poor drafting, but it’s unclear how encouraging others to break any non-national security law could possibly constitute sedition.

5/ In response to the calls from respected authorities across the world for Hong Kong to amend their sedition law to require an element of violent intent, which is the internationally-accepted standard for sedition, Hong Kong instead specifically added provisions to state that neither intent to incite violence nor intent to incite public disorder are required. This is a big "F you" to the concept of international rights and norms.

6/ As for state secrets, the draft (as expected) largely adopted the proposal put forth last month in the public consultation document. It includes an exceedingly broad definition of state secrets that bars revealing a wide range of both public and private information and data, similar to the secretive approach of Mainland China.

With that said, there is now a provision that permits revealing secrets that indicate government corruption/misconduct/shortcomings, and secrets that reveal a serious threat to public order, public safety, or public health. This is likely a nod to the significant concerns raised by even pro-Beijing legislators and members of the media that the law would criminalize reporting misconduct or public dangers. Whether this will actually allow space for this sort of reporting in practice remains to be seen.

7/ Now for the procedural changes.

First, the provisions allowing for extension of custody of detainees without charging them is not quite as bad as feared. The maximum period of detention without charge appears to be 14 days beyond the initial detention period (usually 2 days). That’s not great, but well below the 6 months or more that many (including me) feared.

However, these procedural provisions will effectively eliminate many of the already weak protections afforded to national security defendants.

The new law permits the police to apply for a warrant to strip defendants of their right to a lawyer during their pre-charge detention—a longstanding fundamental right in Hong Kong—and to prevent altogether defendants from consulting with particular lawyers or law firms—incentivizing criminal lawyers who want cases to “play ball” with the government and not fight too hard for their clients.

Another provision permits the cancellation of passports of “absconders,” a disturbing provision that would leave many human rights activists, including many I work with here in the US, stateless.

This is a huge law with a lot more disturbing features. It will likely pass with few significant changes, if any. It represents a clear, unequivocal move by Beijing to ensure the slightest dissent will not go unpunished in Hong Kong.