Conditions right for Article 23 legislation

Suggestions to apply national security legislation by amending existing ordinances fail to follow Basic Law and will dull the deterrent effect, Kuk Fung points out

The recent visit by senior officials of the central government to Hong Kong to explain the messages of the 19th National Congress of the Communist Party of China achieved the result they came for, which is to help the city understand the decisions reached at the epic conference in Beijing. Wang Zhimin, director of the Central People’s Government’s Liaison Office in the Hong Kong Special Administrative Region, was among the speakers who gave SAR government senior officials a thorough rundown of what “national awareness, patriotic spirit and national thinking” mean.

The congress made it clear that all Chinese citizens “must fulfill their constitutional duty of safeguarding the country’s sovereignty, security and development interests”; and Hong Kong must carry out the spirit of the congress too, by fulfilling its constitutional duty proactively. For the SAR, safeguarding national interests is the best way to safeguard “one country, two systems” and the fundamental interests of Hong Kong residents. Regarding national security, conditions are now right for the HKSAR to begin drafting legislation according to Article 23 of the Basic Law and addressing technical issues.

Wang joined Leng Rong, director of the Party Literature Research Center of the Central Committee of the CPC, on Nov 23 to explain the spirit of the congress to senior SAR government officials. Wang incorporated General Secretary Xi Jinping’s speech during his inspection visit to Hong Kong on July 1 in spelling out the meaning and importance of “national awareness, patriotic spirit and national thinking” to understanding and grasping the relationship between the nation’s Constitution and the Basic Law of the HKSAR, between the overall jurisdiction over the HKSAR by the central government and the city’s high degree of autonomy, between Hong Kong’s own development and the nation’s development, between “Hong Kong handling its own business with Hong Kong thinking” and “Chinese mainland ways according to Beijing thinking”, and between “one country” and “two systems”.

Wang reiterated that “one country” is the absolute prerequisite of “two systems”; without “one country” there would be no “two systems”. He also hoped Hong Kong will make full use of its strengths and seize every opportunity to integrate its own development into the nation’s overall development, do its best in contributing to the great rejuvenation of the Chinese nation as part of its historical duty and enjoy the rewards for helping the motherland become more prosperous and stronger than ever.

An SAR government spokesperson said at a press conference that the 19th National Congress of the CPC is of great and far-reaching importance to the country’s development as well as Hong Kong’s. Some parts of Xi’s congress report directly concern Hong Kong, such as the central authorities’ support for the HKSAR to integrate its own development into the overall development of the country, the spokesperson added. The lectures about the congress will help SAR government officials understand the spirit of the Party congress and Xi’s report, which in turn will benefit the SAR government’s work.

“Benefiting the SAR government’s work” should

Fragmenting national security legislation and inserting bits and pieces into different laws will be problematic.

not be words only but also shown in the results of the SAR government’s work, particularly in safeguarding national security.

Through Wang’s explanation, I trust Hong Kong society has gained a deeper understanding of national awareness, patriotic spirit and national thinking. Some people may have a point in saying that it is not easy for Hong Kong residents to understand what Xi means by “fulfilling the constitutional duty of maintaining the country’s sovereignty, national security and development interests”, but the same cannot be said of national security legislation according to Article 23 of the Basic Law.

For the HKSAR, having delayed fulfillment of a constitutional duty for 20 years is not only unbelievable but also unacceptable. In terms of the objective conditions for the national security legislation according to Article 23 of the Basic Law, it is safe to say Hong Kong has them now. As for public opinion, consensus, direction and content of the national security bill, it is up to the SAR government to come up with sound solutions.

I have written previously that Hong Kong society had reached a more or less common understanding over Article 23 legislation, but some people insist the government should learn a lesson from the failed first attempt and apply national security legislation by amending existing laws “piece by piece”. For example, they suggested, we can start with amending the Crimes Ordinance by adding offenses such as treason, sedition, subversion, secession and inciting a riot; amending the Official Secrets Ordinance to handle leaking State secrets; and amending the Societies Ordinance to limit connections between local and foreign political organizations.

Those views should be seen as well-meant but fragmenting national security legislation and inserting bits and pieces into different laws will be problematic. For a start they fail to follow Article 23 of the Basic Law exactly, which stipulates: “The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies”, without mentioning amending existing laws. Secondly this move would minimize such laws’ deterrent effect. In many countries, be it a common-law or civil-law system, a national security law exists alongside other laws that contain similar provisions against certain crimes because it is deemed necessary for safeguarding national security.