Published: 11:55, February 15, 2024 | Updated: 11:59, February 15, 2024
Western laws provide a template for Hong Kong’s Article 23 legislation
By David Cottam

Article 23 of the Basic Law of the Hong Kong Special Administrative Region requires that the Hong Kong SAR government passes national security laws to prohibit seven specific offenses. These are treason, secession, sedition, subversion against the Central People’s Government, theft of State secrets, conduct of political activities in the Region by foreign political organizations, and the establishment of ties by political organizations of the Region with foreign political organizations. 

Two decades later, after a false start in 2003, the government has finally committed itself to following through on these obligations. Of course, the context for the implementation of Article 23 has now changed, with the National Security Law for Hong Kong (NSL) - enacted by the Standing Committee of the National People’s Congress in June 2020 - already covering two of the offenses - secession and subversion. The NSL was brought in as an emergency measure to halt the chaos of the 2019-20 rioting. Although roundly criticized in the West for “undermining ‘one country, two systems’”, the NSL has undoubtedly helped to restore order and calm in Hong Kong. Surely, everyone in Hong Kong, the Chinese mainland and the West can now see the logic of Hong Kong moving on to establish its own comprehensive set of security laws under “one country, two systems”, as stipulated in the Basic Law. 

Secession is the act of becoming independent and no longer part of a country, union or federation. It is seen as a threat to both national sovereignty and national security, and is illegal in many countries

The seven offenses specified by Article 23 of the Basic Law, and now covered by the combined NSL and the proposed Article 23 legislation, are all similarly regarded as serious offenses throughout the world. This should mean that during the Article 23 legislation consultation period we can expect nothing but helpful, constructive and supportive comments from Western politicians and the Western media. Taking each of the seven offenses in turn, here’s what they mean and how they are viewed in the West:

Treason is the crime of attacking a state authority to which one owes allegiance. It can include participating in war against one’s own country, attempting to overthrow its government, or materially aiding its foreign enemies. Unsurprisingly, it’s regarded as a serious crime in Western countries and carries harsh penalties. In the United States, the maximum penalty for treason is death and the minimum penalty is five years’ imprisonment. Any person convicted also forfeits the right to hold public office. In the United Kingdom, the traditional penalty for treason used to be hanging, drawing and quartering. This barbaric practice was abandoned in 1814, to be replaced by mere hanging (the gruesome disembowelling, beheading and quartering of the body to be carried out posthumously). When capital punishment for treason was finally abolished in 1998, the maximum penalty became life imprisonment. This is also the maximum penalty for treason in many other countries that have no death penalty, including Canada, Australia, France, Germany and Italy.

Secession is the act of becoming independent and no longer part of a country, union or federation. It is seen as a threat to both national sovereignty and national security, and is illegal in many countries. In the US, in 1860-61, when 11 Southern states declared secession from the Union and formed their own Confederacy, it provoked the American Civil War of 1861-65. After the defeat of Confederate forces by the Union army and the reintegration of the 11 states into the Union, it was clear that secession would never be a legal option for any US state. This view was confirmed in the 1869 case, Texas v. White, where the court ruled that individual states could not unilaterally secede from the Union. The judge’s verdict was that when an individual state entered the Union, it entered into “an indissoluble relation” and was legally bound by “all the obligations of perpetual union”. This judgement has never been successfully challenged and was reiterated in 2006 when Supreme Court Justice Antonin Scalia was asked whether there could ever be any legal basis for secession. “The answer is clear,” Scalia wrote. “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede”. It’s a similar story in Spain, where in 2017 the Constitutional Court unanimously declared that the unauthorized referendum on secession by the powerful region of Catalonia was illegal. The court also ruled that a law passed by the Catalan regional government allowing it to call such votes was unconstitutional. Nine Catalan independence leaders were subsequently given prison sentences ranging from 9 to 13 years.

Sedition is inciting revolt, insurrection or violence against a lawful authority to destroy or overthrow it. In many countries throughout the world it’s regarded as a serious crime. In the US, individuals charged with “seditious conspiracy” could serve up to 20 years in prison. Following the 2021 attack on the US Capitol, the leader of the right-wing Proud Boys group, Enrique Tarrio, was actually jailed for 22 years - for seditious conspiracy plus some lesser crimes. In Canada, sedition is also an indictable offense with a maximum punishment of 14 years in prison. In the UK, sedition laws were strengthened by the Sedition Act of 1661. This was enacted immediately after Charles II was restored to the throne, clearly not wanting to meet the same fate as his father, Charles I, who was executed in 1649 during the English Civil War.  Sedition remained an offense in the UK until its abolition in 2009, when its terms had been largely superseded by the 2006 Terrorism Act making it an offense to encourage or glorify terrorism.

Subversion against the government is the systematic attempt to overthrow or undermine a lawful government or political system by persons working from within or by external saboteurs. In many countries, this has long been regarded as criminal behavior designed to destabilize the State. The US, for example, was notoriously focused on the dangers posed by subversion during the late 1940s and 1950s. Led by Senator Joseph McCarthy, the Un-American Activities Committee obsessively investigated alleged disloyalty and subversive activities by private citizens, government employees, and organizations suspected of having communist sympathies. Although the paranoia associated with McCarthyism has now faded, US federal law still includes “subversive activities” as an offense, alongside treason and sedition. 

Theft of state secrets refers to the theft of confidential materials that have a direct bearing on state security and national interests. It’s a serious crime in countries around the world and carries harsh penalties. In the US, the 1917 Espionage Act is still in force and is applicable to the mishandling or sharing of classified information. The law criminalizes the unauthorized retention or disclosure of information related to national defense that could harm the US or aid its enemies. High-profile people charged under the Espionage Act include Julian Assange, Edward Snowden, Chelsea Manning and Donald Trump. A single count of violating the act can yield a maximum sentence of 10 years in prison. However, where convictions relate to “gathering or delivering defense information to aid a foreign government”, the maximum penalty is life imprisonment or death. In the UK, this area of espionage law has recently been strengthened by sections of the 2023 National Security Act. This specifies the criminal offense of “obtaining or disclosing protected information” (replacing provisions in the prior Official Secrets Acts) and increases the maximum sentence to life imprisonment. The Act also created the new offense of obtaining or disclosing to a foreign power any UK trade secret, carrying a maximum penalty of 14 years’ imprisonment.

Conduct of political activities by foreign political organizations refers to the illegitimate interference by foreign powers in the internal politics of a State. In the US, the Department of Homeland Security defines this as: “Malign actions taken by foreign governments or foreign actors designed to sow discord, manipulate public discourse, discredit the electoral system, bias the development of policy, or disrupt markets for the purpose of undermining the interests of the United States and its allies”. In the UK, the same concerns were addressed in the 2023 National Security Act. This created the new offense of foreign interference, designed to “deter and disrupt the activities of foreign states who seek to undermine UK interests, our institutions, political system, or our rights, and ultimately prejudice our national security”. The foreign interference offense carries a maximum sentence of 14 years. 

The establishment of ties by political organizations with foreign political organizations is really a corollary of the previous offense. It’s designed to prevent collusion between internal political organizations and hostile foreign powers seeking to undermine national interests or interfere in national affairs such as elections. Western concerns about this are neatly summarized in the words of a 2023 report to the European Parliament’s Special Committee on foreign interference in the EU: “Foreign interference should be restricted by criminalization, sanctions and a ban on foreign involvement in third-party election campaigning.”

From all of the above, it’s clear that Western governments have led by example in enacting laws to counter these seven offenses. Such laws are key elements of national security everywhere and seen as a fundamental duty of every Western government. It should reassure Hong Kong residents that their government is now aligning itself with governments in the West and around the world in pursuing these national security objectives and finally fulfilling its obligation under the Basic Law. 

The author is a British historian and former principal of Sha Tin College, an international secondary school in Hong Kong.

The views do not necessarily reflect those of China Daily.