What should be done about Article 23?
Professor Albert Chen, Professor of Department of Law, University of Hong Kong, was the Foundation's guest speaker on 9 December 2002. This is a summary of his remarks.
Article 23 of the Basic Law requires Hong Kong to enact criminal legislation to protect China's national security. As a student in Hong Kong, said Professor Chen, he recalled that the criminal law textbook had one chapter on offences against the security of the state. The lecturer never taught it because at that time it had no practical importance. The focus in law studies then, as now, was on crimes against the person and property, such as murder and theft. There have been no prosecutions under the existing colonial security legislation in Hong Kong since the 1970s. In Britain, there have likewise been no prosecutions in recent times on treason or sedition; there have been a few on breaches of the Official Secrets Act.
Many of the audience that day, said Professor Chen, were from overseas countries. Each knew that his own country had laws similar to those proposed by the Hong Kong Government. It was normal for a State, no matter the nature of the political regime, to protect itself against crimes against national security. However, Hong Kong had two particular problems in seeking to implement legislation in this area.
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Firstly, Hong Kong was part of the PRC. The Mainland security laws were very draconian. The 1979 Criminal Code included the concept of counter-revolutionary crimes, and was used to suppress dissidents. The 1997 Criminal Code amended these provisions, converting counter-revoluntionary crimes to crimes against national security, but the content remained similar on treason, subversion and secession. The Hong Kong Government's proposal to legislate on Article 23 raised fears that it would import Mainland standards. The Mainland law is extremely strict: a citizen could be guilty of theft of state secrets and not even know it. And conviction could be brought for secession or sedition even if the act in question was a matter of speech only and no violence was involved. If such standards were introduced in Hong Kong, there would be a fundamental change of the Hong Kong system. It would be a large scale reduction of civil liberties.
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Secondly, the existing colonial laws on treason and sedition were very strict. In 1952 the Government had prosecuted Tao Kung Pao for publishing an article from the Mainland. Even though no violence had been involved. The Hong Kong courts upheld the decision against the editors. The court maintained that under the existing laws it was not even necessary to prove intent to incite violence.
Hong Kong therefore had two problems. The Mainland laws were very draconian. And even if the status quo were preserved, the colonial laws were very draconian too.
The consultation paper did not propose to import the Mainland system. It would retain most of the existing legislation, such as the Official Secrets Ordinance (which was a copy of the UK Act), and in addition, since existing laws had nothing on secession or subversion, the paper had developed unique and invented definitions of these concepts specifically for Hong Kong. The result was very different from Mainland law, and constituted a genuine attempt to devise a separate solution. The proposals also attempted to use the existing law, as the foundation to build upon.
But the existing laws, under which there had been no prosecutions in recent decades, were draconian. Accordingly, the consultation paper sought to review and modernise existing laws. The existing law on sedition, for example, was proposed to be liberalised to include a provision requiring incitement to violence. In accordance with these proposals, the 1952 judgement would not hold.
In these respects the proposals were reasonable and sensible. But other areas were defective or unsatisfactory. The defects were largely technical and were too numerous to mention in detail, and he had covered them elsewhere, said Professor Chen. However, some of the main issues were the definition of unauthorised access to official information - it was too wide and open to abuse. Another concern was proposed retention of the existing offence of possession of seditious publications - one's personal reading should be a private matter. A third matter was the vagueness of the actus reus regarding subversion and secession. And then there were the provisions on proscribed organisations. To some extent these linked Hong Kong to the Mainland law. An organisation proscribed on the Mainland would trigger consideration by the Hong Kong Government regarding possible proscription of an affiliated Hong Kong organisation, although it would not bind the Government to proscribe the organisation in Hong Kong.
The proposals did attempt to take into account civil liberties. The general orientation was acceptable: generally speaking, the paper put into effect the One Country Two Systems principle and took into account international standards. The main problem was that people were suspicious. They thought that the Government was seeking to reduce civil liberties, and was acting in response to Mainland pressure to crack down on Falun Gong.
The timing of the exercise was not inappropriate. A reasonable period of time had elapsed since the start of the SAR ?five years. The matter could not be postponed indefinitely. Almost every country in the world has laws on crimes against national security. In 1996, Governor Patten introduced a bill on Article 23; the definitions of subversion and secession were not more liberal than the present proposals. The legislature did not enact it because the legislators did not want to deal with it, and Beijing did not want Patten to handle the matter.
The consultation period was to end in December 2002, with the bill to be produced in February. Should it be a White or a Blue Bill? This depended on the legislative timetable. The term of the present legislature would end in 2004. If the matter were not resolved in legislation by then, it would become an election matter. If the Government felt its timetable considerations were such that it could not provide a White Bill, Professor Chen said, he hoped that the Government would explain clearly the reason why this was so. A White Bill for another round of consultation would perhaps take a minimum of two months more.
The procedure for the legislative process was very important. Many did not understand the details, but were so disappointed by the procedure that they had lost confidence. A very important test would come in the extent to which the Government was prepared to make changes to the proposals in the original consultation document. People needed to see that their concerns were addressed and that the more objectionable proposals were withdrawn or modified. They would then see that the Government was sincere about One Country Two Systems, human rights and international standards, about retaining the common law. Already one could see a change in the Government's attitude. Initially they had tried to sell the proposals to the public; now they seemed more willing to listen to concerns.
Was Beijing concerned to see early enactment of legislation on Article 23? Professor Chen did not think that it was a matter of urgency for Beijing. However, the legislative timetable, with elections looming in 2004, was a valid concern for the Government. As regards interpretation of the future legislation, the National People's Congress would not have the power to interpret legislation enacted under Article 23; the NPC's interpretative power applied only to the Basic Law itself. Any dispute on the application of the new law would be resolved by the Hong Kong courts.
There has been no use of the existing legislation on sedition and treason for decades. Professor Chen did not expect the Government to use the new legislation either; or at least it would take full account of the political cost of using it. Of course, if Hong Kong were a democracy, there would be less concern about the whole thing.
The above does not necessarily represent the views of the Foundation