Understanding State Secrets and the Public Interest Defense under the Hong Kong Safeguarding National Security Bill: A Comparative Analysis with International Law Principles

The Hong Kong Legislative Council recently made headlines by unanimously passing the Safeguarding National Security Bill. This bill, which is considered a constitutional duty under Article 23 of the Hong Kong Basic Law, aims to enhance national security by criminalizing activities such as the theft of state secrets.

One of the key aspects of the bill is the definition of “state secrets,” which includes information related to major policy decisions, national defense, diplomatic activities, economic development, and more. The bill also introduces offenses against the unlawful disclosure and possession of state secrets, particularly when committed by public officers.

In addition to defining state secrets, the bill also includes a “public interest defense” provision. This defense allows for the disclosure of information if it is deemed necessary to reveal circumstances affecting the government’s functions or a serious threat to public order, safety, or health. However, the defense has stringent conditions and a high threshold that the defendant must meet.

Internationally, legal scholars have outlined principles for balancing national security interests with freedom of expression. The Johannesburg Principles and the Tshwane Principles emphasize the importance of transparency and accountability in restricting access to information. These principles provide guidance on when restrictions on freedom of expression can be justified in the name of national security.

While the Hong Kong government has incorporated a public interest defense in the Safeguarding National Security Bill, the extent to which Hong Kong courts will interpret the bill in line with international human rights law remains to be seen. The bill’s passage marks a significant development in Hong Kong’s legal landscape, and its implications for freedom of expression and national security will undoubtedly be closely monitored.