Academic freedom a top concern as new security law looms

A new security law for Hong Kong, which is expected to have a chilling effect on academic and other freedoms, is being rushed through the city’s legislature under an accelerated process after less than a month of public consultations.

The so-called Article 23 security law under Hong Kong’s own mini-constitution, the Basic Law, will sit alongside the National Security Law (NSL) imposed by Beijing in 2020. The law will introduce or revamp five new types of offences: treason, insurrection, sabotage, external interference, as well as theft of state secrets and espionage.

The draft, tabled in the legislature on Friday 8 March, extends sentences for some existing offences, and brings in life sentences for others such as insurrection. Some offences, including “seditious intention”, will apply to Hong Kong people abroad, while espionage using remote devices and sabotage related to electronic devices, which “endanger national security”, can apply to anyone outside Hong Kong.

Several Hong Kong-based academics approached by University World News said the draft law was “too sensitive” to criticise publicly.

Threats to open academic culture

Privately, they said it will have a dramatic effect on universities’ open culture. They said the crimes are defined so broadly in the government’s consultation document released last month that it is unclear where the legal boundaries lie.

Michael C Davis, a human rights professor and fellow at the Wilson Center, a think tank in Washington DC, who taught law in Hong Kong for 30 years, including at the University of Hong Kong (HKU), told University World News that the existing NSL and fears of the possible retroactive use of Article 23 once passed mean that “avenues for debate have now been curtailed in terms of a crackdown on outspokenness, especially in universities, so that even in the classroom it’s dangerous for a professor, even a law professor, to speak out honestly on these issues as they might have done prior to 2019”.

Davis was referring to the 2019 protests in Hong Kong which were followed by the NSL and an aggressive pattern of arrests and ongoing legal prosecutions.

Now, “a lot of academics have gone silent,” he said.

“There’s a big risk, and students are encouraged to report them … even if they do it [speak out] in the classroom – there’s a [NSL] hotline for that – or even just report them within the university.”

Davis noted many lawyers have left Hong Kong, while progressive groups that might have commented on or lobbied against such illiberal laws as Article 23 in the past have been disbanded or closed down, as part of the authorities’ systematic targeting of liberal institutions in the city.

Some are monitoring Hong Kong’s legal system from overseas, he added. But even overseas, “many are worried about how their families in Hong Kong may be put under pressure”.

A number of overseas activists have had their family members in Hong Kong called in to police stations to be interviewed, Davis said. He added that it was an attempt by the authorities “to try to find out if they're in any way supporting their sons or daughters overseas, who had been active in the [2019] protests in Hong Kong and are now testifying at overseas legislative bodies and parliaments”.

Davis left Hong Kong in 2020, the year the NSL came into force. In his just-published book Freedom Undone: The assault on liberal values and institutions in Hong Kong, he charts the city’s transition from a free and open society to one in which legal institutions, the media, civic society and academic freedom have all been curtailed.

Earlier this month, he described Article 23 as the latest tool in this process.

“One of the starkest differences between Hong Kong and the mainland could be found in our classroom (at HKU). The entire syllabus was prohibited on the mainland by China’s famous Document No 9, which forbids promoting or teaching topics like constitutionalism, the separation of powers, and Western notions of human rights. The NSL now effectively brings Document No 9 to Hong Kong,” he wrote in his book.

Earlier attempt at Article 23

In his book, Davis describes how lawyers and law academics in Hong Kong in 2003 opposed a previous version of Article 23 proposed by the then Hong Kong government.

The group of lawyers and academics, that included himself and another law professor at HKU, produced a series of pamphlets on international standards of human rights laws relating to Article 23, and handed out around 500,000 copies in the streets of Hong Kong.

“These resonated with the public,” Davis explained, saying he never expected legal explanations of human rights-related laws to be so widely read by ordinary people.

The attempt in 2003 to push through Article 23 had to be shelved by the then Hong Kong administration after half a million people came out into the streets to protest against it.

“At that time, we were writing about Article 23 in a very open society. There was no heavy-handed ‘Big Brother’ looking over people's shoulder, the kind of intimidation that we see today,” Davis pointed out in an interview with University World News.

“After that (2003) exercise, there was a view in the [Hong Kong] government that the public won't tolerate such Article 23 legislation, so nothing was done until the current exercise [in 2024], but what they didn't understand is, the idea of having such legislation wasn't the people’s objection: it was the content of it,” he said.

This week the Hong Kong authorities said 98.6% of the 13,489 submissions it received during the month-long consultation exercise that ended on 28 February supported the Article 23 legislation.

Among the 97 opposing comments, “which only accounted for 0.72% of the total submissions”, according to the government, half of them were anonymous and one-fourth were from what it termed “anti-China groups” such as Hong Kong Watch and Amnesty International, wanted persons overseas, and national security suspects on remand, Hong Kong’s Secretary for Security Chris Tang said this week.

The Article 23 crimes receiving the most feedback this year were seditious intent, leaking national secrets and overseas crimes, with most submissions supporting the establishment of extraterritorial effectiveness, according to Tang.

In contrast to the latest round of public consultation, around 90,000 submissions were received during the consultations for the 2003 version of Article 23, many of them opposing it.

In a document released this week which summarised the consultation results, the government indicated that crimes involving collusion with foreign forces under the national security law would be “considered as a more severe degree of crime”.

Packed legislative schedule

Despite its importance, the draft legislation is being discussed in the legislature as part of a packed schedule. According to legislative officials, after being tabled on Friday 8 March, there will be “speeded up” meetings that are to extend over the weekend to deal with the new law.

Among the issues being considered in the latest draft, and of particular concern for academics, is an increase from five to 10 years in prison of the sentence for “unlawful disclosure of state secrets”.

The draft bill provides a defence for anyone accused of unlawful disclosure of state secrets if that person “did not know and had no reasonable grounds to believe” that the material concerned was or contained a specified state secret.

Legislators spoke out during legislative committee hearings on Friday on the “broad and vague” definition of international organisations that might fall under the offence of “colluding with an external force”.

Davis said: “Their definition of what is an external force includes domestic or foreign activities ‘carried out by espionage organisations and their agents, or instigated, supported or colluded in by domestic or foreign institutions, organisations or individuals’,” quoting from the consultation document. “So, what does that exclude?”

However, Tang said the draft legislation “clearly defined” each offence and had “suitable exemptions”. Presenting the bill in the legislature, he said: “It is required to prove that the defendant had criminal intent such as intention, knowledge or recklessness when committing acts of endangering national security, so that innocent people will not be brought to justice by mistake.”

Apollonia Liu Lee, Hong Kong’s deputy secretary for security, told legislators that “government-established entities” would mainly fall into the definition, adding that a narrow definition may not be able to cover “the targeted groups” which would diminish the effectiveness of the law.

Even under this definition, Davis pointed out, “external forces could be a think tank – some think tanks that are very focused on issues like human rights and democracy are already attacked by the Beijing government, such as those that are funded by foreign governments, like the National Endowment for Democracy and national democratic institutions in the US.

“Then the question for academics, if they're involved in research on social, political and legal issues in the public sphere, is: should they take up a fellowship, for example, from such an institution?”

In addition, if an academic works for one of these overseas organisations or institutions and is writing about democracy or liberal values, they would be wondering if they should even travel to Hong Kong. Davis said there is already discussion of whether academics should only travel to Hong Kong with a burner phone or burner computer (meant for temporary or anonymous use).

While this had been a common precaution for academics visiting mainland China, Davis said he heard from academics that “Hong Kong has now become one of those places”.

He explained: “No one trusts that this law is going to be just narrowly applied. There’s a feeling that this kind of view of external national security threat is aimed at any kind of organisation or institution that may be a venue where critical views of Hong Kong or China are offered, which, quite frankly, is most academic institutions that deal with China.”

Rush to pass the Article 23 law

Sources say the intention is to pass Article 23 into law by mid-April.

Hong Kong Chief Executive John Lee Ka-Chiu and some members of Hong Kong’s legislature rushed back from Beijing this week where they were attending the current joint sessions of the National People’s Congress and Standing Committee of the Chinese People’s Political Consultative Conference (CPPCC).

“The sooner we enact Article 23, the sooner we can better safeguard national security,” Lee said this week. The legislature, which is constituted mainly by pro-Beijing legislators, is expected to approve it.

Beijing has been openly pushing for haste.

“In recent days, some Western politicians and media in the US have rushed to attack the Article 23 legislation and spread fear and unease. Therefore, completing the legislative work as soon as possible leaves no time for external forces to further deploy actions to obstruct the process,” Lau Siu-kai, a consultant from the Chinese Association of Hong Kong and Macau Studies, was quoted by China’s official Global Times newspaper, as saying.

One of those who returned on Wednesday was Eliza Chan, a CPPCC delegate who is also a member of the Executive Council, a body which advises the Hong Kong leadership. She said China’s Vice-Premier Ding Xuexiang this week held talks in Beijing with Hong Kong delegates of the CPPCC.

Ding told them there was “consensus in Hong Kong society” around the legislation, and that everyone wanted it approved as soon as possible.

Another CPPCC delegate from Hong Kong, Teng Jin-guang, who is president of the Hong Kong Polytechnic University, said the legislation would ensure stability, an argument often put forward by Beijing, particularly since the 2019 unrest, and often used to justify the NSL.

According to an article carried by China’s official news agency Xinhua on Friday 8 March, the Article 23 bill has struck a balance between safeguarding national security and protecting human rights, freedoms and economic development.

Implications for academic freedom

The Hong Kong government has said Article 23 will be limited to a small number of cases, and that universities should not be concerned about the effect of the national secrets laws on research.

But Davis said free expression in general, and academic and media freedoms in particular are clearly among Beijing’s primary targets under the NSL. “Academic freedom in universities and secondary schools has been among the highest impact areas targeted under the NSL,” he stated.

Davis said: “The consultation document goes on at great length, quoting from Chinese mainland laws in the area of national secrets.” But under China’s laws “there are more than 20 areas that are mostly about ordinary life of people in China, where they could run the risk of violating national security standards. So, it's hard to be comforted by any statements officials make that [argue] this is applied in a limited way.”

According to Davis, the legislation has significant implications for academic research. “It poses a big risk and degrades the reliability of Chinese studies in Hong Kong” where researchers seek out data and information from the mainland.

Davis said he has already observed a new trend among younger academics. “Historically, my brightest students who aspired to become professors might go abroad to study for a doctorate and then return to take up an appointment in Hong Kong. This worked to the great advantage of Hong Kong and China studies.

“In the face of the NSL and Article 23, for those who have engaged in social [and] political issues relating to Hong Kong or China, this path may now be closed. Pursuing their academic career in Hong Kong may now be too risky,” he explained.

Davis also referred in his book to the indirect consequences of political pressures as both the Chinese University of Hong Kong (CUHK) and Hong Kong’s City University have announced plans to restructure the departments that teach politics, allegedly due to low enrolment in the wake of the NSL.

At CUHK, political science is being merged with other disciplines in a new school, according to reports that emerged in 2022.

“The 51-year-old Department of Government and Public Administration (GPA) at the Chinese University of Hong Kong, in which I taught for many years, was one of the most popular and influential academic departments in Hong Kong,” Davis said. “That GPA was reportedly under-enrolled speaks volumes about the political environment students now face.”

A ‘fear of liberal values’

In his book, Davis describes the dismantling of institutions in Hong Kong as a warning. “An alliance of autocracies, including China, Russia and others, tends to promote globally an illiberal vision that often maintains the structures of liberal democracy, while abandoning the values, norms, and freedoms that enable such structures to function,” he writes.

Beijing is currently emphasising national security even over economic development, Davis said. “At the heart of its national security agenda is the fear of these liberal ideas and values would make it impossible for the Communist Party rule to be maintained. They see that as a threat, and they seem willing, in the context of Hong Kong, to sacrifice whatever they have to in order to contain that threat.”

Maya Wang, acting China director at Human Rights Watch, said last month: “Article 23 is Beijing’s latest effort to transform Hong Kong from a free society to an oppressed one where people live in fear. Passage of this law will mean that even more of Hong Kong people's basic rights will be taken away from them.”

Amnesty International’s Deputy Regional Director for China, Sarah Brooks said on Friday: “The apparent overarching purpose of Article 23 is to stifle any and all criticism of the Chinese and Hong Kong authorities and their policies, within the city and globally. The extraterritorial reach of this legislation would leave no one safe from being labelled a threat to national security.”