Time to Defuse the Article 23 Bomb

There is something rather worrying about a community that seems afraid of discussing an important subject. National security is not an abstract matter, it is an issue that should concern every responsible citizen.

Moreover in the case of Hong Kong, it is a specific constitutional duty. Article 23 of the Basic Law provides that the Hong Kong SAR "shall enact laws on its own..." covering treason, succession, sedition, subversion, theft of state secrets, activities of foreign political organizations and ties with such bodies.

There are several striking features of the Article. Use of the word "shall" means it is obligatory, not something where we can choose whether or not to do it. The phrase "on its own" is a tremendous privilege, because it shows that the Central Government trusts us to perform such an important national task ourselves, and also implicitly recognizes that in the local context these issues need to be handled sensitively because they need to be addressed in a way which is compatible with our Common Law traditions. But are we worthy of their trust?

Various public statements to the effect that this is not a priority and there is no fixed timetable for introducing the legislation raise legitimate questions about our bona fides. There are some in China who resent the special status Hong Kong enjoys and would like to see us pulled back into line. We should not be handing them fresh ammunition to use against us.

Given that some 500,000 people marched on 1 July 2003 to express their discontent with various Government policies and activities, with draft legislation on Article 23 as the immediate trigger, then it is natural for the Administration to be cautious. But an understandable need to be careful is not an excuse for paralysis.

Those who led the opposition to the 2003 draft Bill were right to highlight their concerns about the provisions as drafted. But they would be making a grave error if they tried to parlay that virtuous conduct into a permanent stay.

We are after all more than a quarter of the way through the period in respect of which the Basic Law guarantees our way of life will remain unchanged. There is no reason in principle why the 50 years should not be interpreted as a minimum capable of infinite extension rather than a limit. But a prerequisite for that happy outcome would surely be our willingness to undertake those duties required of us. The Basic Law gives us so much, and asks of us so little in return, that it would be folly not to do so.

The previous draft of the legislation is clearly a dead duck and it is not worth trying to revive it as a basis for discussion even accompanied by an expressed willingness to consider significant amendments.

Surely it would be better to wipe the slate clean and start afresh. Who could we invite to provide a new draft to get the ball rolling? How about setting up a special working group for the purpose? It could be chaired by a past chairman of the Bar Association perhaps, with representatives of all interested parties included. It could look at comparable legislation in other Common Law jurisdictions and seek to cover all the key points while making sure there are appropriate safeguards against abuse. (The appalling Homeland Security law in the USA would not be a suitable model).

The draft could then be subject of a grand reconciliation session involving the Security Bureau and the Department of Justice with a view at best to reaching a consensus or at worst identifying a (hopefully small) number of areas where agreement cannot be reached. The revised draft could then go before LegCo. For points remaining in dispute, both versions of the relevant clause could be tabled for debate.

Such a transparent and fair process should win the support of all persons of goodwill, and be acceptable to the community. And it would enable us to fulfill our constitutional duty.

It would be unfair in the extreme to the incoming Chief Executive to hand over a ticking time bomb like this in two years time, which would inevitably get his administration off to a rocky start. It would be far better to at least begin the process now to take some of the sting out.

The official website has the slogan "The Basic Law concerns us all, let's get involved". Perhaps it is time for the Government to listen to its own advice.