National security legislation could be enacted in phases

Tony Kwok says HK has privileged position in being able to craft its own security legislation — and laments its failure to do this

The Hong Kong Special Administrative Region has suffered a serious breach of trust in the eyes of the central government. There is no country in the world that would let one of its cities enact its own national security law — even those cities and regions granted considerable autonomy. But Hong Kong and Macao stand out as rare exceptions. The fact that Hong Kong is given such a privilege is attributable to the implicit trust the city enjoys from the central government. But 20 years have passed since our reunification with the motherland yet this crucial legislation which ensures our security has yet to be tabled. As Li Fei, deputy secretary-general of the National People’s Congress Standing Committee and its HKSAR Basic Law Committee chairman, pointed out with undisguised impatience during his visit here on Nov 16: “...the undesirable consequences of not having done so already are evident.”

Indeed the disquieting consequences are all too obvious. We had newly elected legislators advocating independence and although they have since been disqualified, the groups they belong to continue to pursue their separatist agenda. Since five years ago, the University of Hong Kong Students’ Union magazines have openly promoted “Hong Kong independence” among the student body; students at the Chinese University of Hong Kong displayed huge independence posters on its campus without any interference from the university management; and separatist groups distribute leaflets in front of schools. We even have government-owned RTHK inviting pro-independence activists to spread their divisive politics on its radio programs.

The worst case is currently in court with prosecution of members of the Hong Kong Independence Society who made smoke bombs with the intention to launch terrorist attacks. They await sentencing after conviction, and it would be interesting to see whether the court appreciated the gravity of their offenses vis-a-vis our national security in meting out appropriate deterrent sentences. This worrying situation is worsening rather than improving. This means there is an urgent need to introduce relevant legislation to stop this slide to anarchy.

Article 23 of the Basic Law covers law on treason, sedition, secession, subversion and the theft of State secrets. In my opinion, we should draw on the lesson from our failed attempt to legislate under Article 23 in 2003. I recall that at the time the media interviewed many people who joined the street protest march; nearly everyone admitted to not having read the draft legislation. Especially among the students, nearly all were “persuaded” by their teachers and principals to take part in opposing the draft legislation. Additionally, the issue was obviously beyond most of the young protesters’ accurate comprehension. Their ignorance makes them susceptible to just follow the instructions of those they looked up to. It’s no secret that these political opposition leaders also used scaremongering tactics by warning of an impending police state which would impinge people’s freedom of expression and movement under the proposed legislation the then unfortunate Regina Ip Lau Suk-yee was tasked to sell to the community as secretary for security.

Hence it probably would make our re-introduction of this legislation easier if we were to do it in phases, giving the public time to understand and absorb each phase before moving on to the next. The opposition parties have tried to scare the Hong Kong people over the offense of theft of State secrets by claiming they could easily be arrested and prosecuted if they possessed any books or magazines criticizing the Communist Party of China. Such an offense is not really a problem in Hong Kong for the time being, so this aspect of the new legislation can wait.

The new law can focus on treason and secession in the first phase. The drafting should adhere to the following principles:

Firstly the law should protect the freedom of expression, for instance merely discussing independence in private would not constitute an offense. However, when people take proactive action in promoting independence through street marches or handing out leaflets, such acts should be criminalized.

Secondly the law should comply with the International Covenant on Civil and Political Rights, under which police can search premises only with search warrants issued by the court.

Thirdly legislation should be consistent with other common law jurisdictions such as the United Kingdom, Canada and Australia.

Drafting the law is not that difficult. For example, a quick search on Wikipedia outlined the law of treason in 18 countries. I have attempted to consolidate all these legislations and come up with a succinct proposal for the law on treason:

“Any person intending to use force or violence to overthrow the central government of the People’s Republic of China or the HKSAR Government, and publicly declares such intentions, by printed material or verbal advocacy, shall be liable to imprisonment for xxx years.”

By focusing on one law at a time, the public would have an easier time understanding the import and rationale of the legislation in its entirety and in due course support it.

Actually, we already have a law dealing with treason on our statute books. We can simply amend Section 2 of our Crime Ordinance along the above lines. It should go a long way toward curbing the current separatism hysteria which is but a self-destruct movement.