Article 23: how Hongkongers can have their say in national security
- From the UK and US to Singapore, the government decides what makes for a matter of national security. In Hong Kong, with the Article 23 consultation paper, we have a chance to speak up
National security has historically been an enigma for the man in the street. Why is it important? Who is to decide what is a matter of national security? Why should my rights be restricted because of it?
National security laws understandably put the nation’s interest above individual rights: without safety of the nation, there cannot be safety of the individual. But in peace time, it is not immediately evident to people why national security laws have to be so sweeping. Importantly, people might wonder why the lines should always be drawn by the government and not by popular vote.
Especially in the West, national security concerns seem to be everywhere and in every aspect of daily life. Yet people appear to have very little say in all this.
Under the National Security and Investment Act 2021, approval of any acquisition of any UK entity or asset is required from the secretary of state if he “reasonably suspects” such an acquisition has given rise to or may give rise to “a risk of national security”.
Under the Telecommunications (Security) Act 2021, the secretary of state can also give “designated vendor direction” to a public communications provider if considered necessary in the “interest of national security”. Yet in none of these sweeping provisions is the government prepared to precisely define what constitutes “national interest” or “national security”.
In the case of “Holder vs Humanitarian Law Project 2009”, the US Supreme Court ruled that, “given the sensitive national security and foreign relations interests at stake [ …] respect for the government’s factual conclusions is appropriate in light of the courts’ lack of expertise with respect to national security and foreign affairs, and the reality that efforts to confront terrorist threats occur in an area where information can be difficult to obtain, the impact of certain conduct can be difficult to assess, and conclusions must often be based on informed judgment rather than concrete evidence”.
In other words, it is for the administration to decide what is a matter of national security.
Whether you agree with this reasoning, such is the reality in matters of national security. One may argue that such sweeping government powers are tolerable in a democracy; but is one then saying that in a non-democratic country, the government must be powerless to protect its nation?
Such checks and balances may lie with a fully elected assembly or fiercely independent judiciary. We may not be blessed with the former but we have the latter. Not only that, but we are constitutionally safeguarded by the International Covenant on Civil and Political Rights as well as rule of law principles.
Ronny Tong, KC, SC, JP, is a former chairman of the Hong Kong Bar Association, a member of the Executive Council and convenor of the Path of Democracy