Hong Kong Watch condemns first application of Article 23

On Monday, pro-democracy activist Ma Chun-man likely became the first Hong Konger to have the newly passed Safeguarding National Security Bill, enacted under Article 23 of the Basic Law and referred to as ‘Article 23’, applied retroactively to his sentence.

Mr Ma was convicted for “incitement of secession” under the National Security Law in 2021. Mr Ma was expected to be released on Monday, 48 hours after the new national security law was in effect. However, speaking to Mr Ma’s case, Hong Kong Chief Executive John Lee said, “It’s been made very clear that if a prisoner is serving a sentence in respect to his conviction of an offence endangering national security, the prisoner is not entitled to remission.” The loss of the previous one-third remission for the good behaviour of prisoners under Article 23 means that Mr Ma will spend at least 20 more months behind bars. 

This case also implies, and John Lee confirmed, that the Hong Kong authorities intend to apply Article 23 retroactively. The retroactive application of Article 23 will place existing political prisoners and others in Hong Kong who have peacefully exercised their rights and freedoms at heightened risk.

Article 23 legislation was swiftly passed by the Hong Kong Legislative Council on 19 March 2024, just 49 days after the Hong Kong Government released the initial 110-page consultation document for the bill. Within 49 days, there was also a 220-page consultation report, a 212-page draft bill, a 524-page Legislative Council brief, and 76 pages of revisions.

The new legislation targets five types of activities which the Hong Kong officials intend to declare as ‘offences’, and contains vaguely-worded provisions which threaten to both criminalise the peaceful exercise of human rights and dramatically undermine due process and fair trial rights in Hong Kong. Article 23 will bring further devastating consequences for human rights and freedoms in Hong Kong, beyond the impact of the National Security Law imposed by Beijing in 2020. In a submission to the public consultation, Hong Kong Watch alongside other international human rights organisations warned that the law also further violates Hong Kong’s obligations under international human rights law.

Immediately following the passage of Article 23, a cross-party international coalition of 89 parliamentarians and public figures issued a statement condemning the Hong Kong government’s passage of the bill and calling on supportive governments to unite against this “flagrant breach of the Basic Law of Hong Kong, the Sino-British Joint Declaration, and international human rights law.”

Benedict Rogers, co-founder and Chief Executive of Hong Kong Watch, said:

“It is deeply concerning that we are already witnessing what is likely to be the first application of Article 23 to sentencing decisions in Hong Kong. Under Beijing’s directives, the Hong Kong authorities passed Article 23 at record speed, and now we are seeing the same in its retroactive application just 48 hours later. This poses a grave risk for Hong Kongers who have and continue to peacefully exercise their rights and freedoms in Hong Kong and abroad. 

The international community should quickly respond to the enactment of Article 23 by making public statements, imposing targeted sanctions, broadening lifeboat schemes for Hong Kongers, ensuring that the law is not applicable overseas and used for transnational repression, and reviewing Hong Kong’s special status including the status of Hong Kong Economic and Trade Offices.”

23條下「第二代美國隊長」馬俊文未獲減刑 香港監察促國際社會迅速採取行動回應新法

有「第二代美國隊長」之稱的馬俊文2021年因《國家安全法》下的「煽動他人分裂國家」罪成被判監五年，原定週一（25日）提早獲釋，惟據稱因《維護國家安全條例》生效而未獲減刑，可能成為新法後首宗追溯個案。

香港行政長官李家超回應表示：「《條例》中說明《監獄規則》會作出修訂，而且說得很清楚，如果囚犯是因為被裁定犯危害國家安全的罪行而服刑，除非懲教署署長信納該囚犯獲得減刑，不會不利於國家安全，否則該囚犯不可以獲得減刑。」

李家超的言論證實，本案暗示香港當局有意追溯應用23條。追溯應用23條將使香港現有政治犯及其他和平行使權利和自由的人士面對更高風險。

香港監察共同創辦人兼行政總監羅傑斯（Benedict Rogers）表示：

「我們已經目睹可能是首宗應用23條的個案，情況令人深感憂慮。香港當局在北京的命令下，以破紀錄的速度通過23條，而我們在新法生效短短48小時後，就看到追溯應用個案。這對已經並持續在香港和海外和平行使權利和自由的香港人構成嚴重風險。

國際社會應迅速回應23條生效，採取以下行動：發表公開聲明；施行點名制裁；拓展香港人救生艇計劃；確保23條在海外並無法律效力並不會被用作跨國鎮壓；檢視香港的特殊地位，包括香港駐海外經濟貿易辦事處的地位。」