This report was written by Kelly Ho and originally published in Hong Kong Free Press (HKFP) on January 30, 2024. An edited version is published below as part of a content partnership agreement with HKFP.
A consultation document for Hong Kong's homegrown security legislation has revealed that the city is seeking to define “state secrets” along mainland China’s legislative line.
The city’s authorities proposed on January 30, 2024, that existing laws should be “improved” to include the term “state secrets” in order to effectively outlaw unauthorised disclosure of confidential information which may endanger national security, such as that relating to major policy decisions, diplomatic affairs and socio-economic development.
The suggestion was made in a public consultation document for enacting the controversial Article 23 of the Basic Law. The provision stipulates that the government shall enact laws on its own to prohibit acts of treason, secession, sedition and subversion against Beijing.
Its legislation failed in 2003 following mass protests, and it was not tabled again until after the onset of the separate, Beijing-imposed security law in 2020. Pro-democracy advocates fear it could have a negative effect on civil liberties.
More than two decades after the 2003 debacle, the government put forward a proposal on January 30 to introduce a Safeguarding National Security Ordinance, which seeks to criminalise treason, insurrection, theft of state secrets and espionage, sabotage endangering national security and external interference.
Definition of ‘state secrets’
According to the 110-page document, Hong Kong may introduce the term “state secrets” to its legislation and provide a clear definition to effectively protect sensitive information, which was ”particularly important to protecting national security and core interests.”
The existing Official Secrets Ordinance did not use the term “state secrets”, and the protected information listed was “not broad enough.”
“All types of state secrets should be protected in every place within one country. Otherwise, it will create a legal vacuum in which the HKSAR cannot protect state secrets in certain fields, posing a risk to national security,” the consultation paper read.
The recommended definition covered secrets concerning major policy decisions on China or Hong Kong affairs, matters relating to the construction of national defence or armed forces, and confidential information linked to China’s diplomatic or foreign affairs activities, as well as secrets concerning Hong Kong’s external affairs.
Information on Hong Kong’s relationship with Beijing and China’s socio-economic development would also amount to state secrets and must not be divulged without lawful authority, the authorities suggested.
The proposed definition of state secrets are:
(a) secrets concerning major policy decisions on affairs of our country or the HKSAR;
(b) secrets concerning the construction of national defence or armed forces;
(c) secrets concerning diplomatic or foreign affair activities of our country, or secrets concerning external affairs of the HKSAR, or secrets that our country or the HKSAR is under an external obligation to preserve secrecy;
(d) secrets concerning the economic and social development of our
country or the HKSAR;
(e) secrets concerning the technological development or scientific technology of our country or the HKSAR;
(f) secrets concerning activities for safeguarding national security or the security of the HKSAR, or for the investigation of offences; or
(g) secrets concerning the relationship between the Central Authorities and the HKSAR.
The wording of the proposed definition was almost identical to that in China’s law on Guarding State Secrets, which Beijing sought to overhaul last year to expand its scope. The legislation identifies major policy decisions on state affairs, building of national defence and diplomatic activities as state secrets.
The Chinese law also included a provision that classified state secrets into three tiers: top secret, secret and confidential, based on the degree of harm a disclosure would cause to state security and national interests.
— Tom Grundy (@tomgrundy) January 30, 2024
The document for public consultation, which lasted just four weeks until February 28, also cited definitions of state secrets adopted by the UK, Canada and the US. It was “common practice” for various countries to regard sensitive information as state secrets if improper disclosure could jeopardise national security or interests, the paper read.
Speaking at the Legislative Council (LegCo) on January 30, security chief Chris Tang said he had noted that some people thought leaks made in “significant public interest” should be exempted from prosecution. “We will give it thorough consideration after hearing from the public,” Tang said in Cantonese.
The definition of state secrets caused controversy in 2003, then-security minister and current Executive Council convenor Regina Ip said in an interview with the Hong Kong Economic Journal last June.
The New People’s Party chairwoman said mainland China and Hong Kong had different definitions of “state secrets,” with China viewing financial data as confidential information. It had spurred concerns in the financial and media sectors, Ip recalled in the interview, adding the issue of defining state secrets was “rather sensitive”.
In June 2020, Beijing inserted national security legislation directly into Hong Kong’s mini-constitution following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts, but it did not target all seven offences listed in Article 23.
The controversial legislation entered the spotlight again in 2021 after numerous high-ranking officials said the authorities were seeking to “plug loopholes” in the Beijing-enacted security law by implementing Article 23.
A bill regarding the implementation of Article 23 was scheduled to be introduced to the Legislative Council in the second half of 2022, but it was left off the legislature’s schedule for the rest of that year.
Chief Executive John Lee said last June that the homegrown security law would “definitely” be enacted within that year or the next year at the latest before vowing during last year’s Policy Address that legislation would be completed in 2024.