Stand and Deliver

It is time to cut the Gordian Knot and work out a way forward on the enactment of Article 23 legislation. And I have in mind a group of people unusually well qualified to do the job.

Continuation of the present situation is surely untenable. Hong Kong has a clear constitutional duty set out unambiguously in the Basic Law. Article 23 reads as follows: "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."

At the moment all the relevant parties – central government, SAR government, pan democrats -- are standing around, hands on hips, wondering what to do and looking for inspiration. Beijing must be feeling exasperated that 20 years after the Basic Law came into effect, nothing has been done. Judging by recent remarks from senior officials such as Li Fei, patience is wearing thin up north and there must be a temptation for them to simply say enough is enough, if you don’t want to do the job yourselves, we’ll do it for you. Here is the mainland law on these matters, now it applies to you too.

It would be hard to blame the central authorities if they took such a view. After all in their eyes, including the phrase "on its own" was a huge concession to the SAR and we’ve done nothing with it.

The best way to describe the local administration is that it is still suffering from post-traumatic stress disorder induced by the events of 2003. (A friend in the government claims that these days the administration is permanently traumatised and never reaches "post" but I shall set that thought on one side). At that time, the administration prepared a pretty draconian draft law. Some lawyers, politicians and academics formed an ad hoc Article 23 Concern Group which studied international practice in these areas and suggested considerable amendment.

The government accepted some of the suggestions, but doubters wanted full public consultation on the basis of a White Bill which the administration was not willing to concede. When the government gave notice that it was going to press ahead, the Liberal Party withdrew its support, half a million people demonstrated peacefully in the streets, the Secretary for Security resigned and the legislative process was halted.

Where does that leave us now? Quite simply there is nobody the opposition trusts to draft legislation in this area, yet its acquiescence if not outright support is required if the law is to be promulgated without provoking unrest. Now comes the suggestion: members of the Concern Group included such legal luminaries as Audrey Eu Yuet Mee, Alan Leong Kah Kit and – wait for it – recently appointed Exco Member Ronny Tong Ka Wah. So why don’t they simply reconvene the group and draft their own legislation? To make the process smoother, rather than being comprehensive and covering all the elements of Article 23, maybe it could just cover a few of the more straightforward ones in the first phase.

I have floated this idea both in private conversation and publically on an RTHK talk show. Several counter arguments are advanced. One is that the process will be like a trade negotiation and if you go first with your ideal version then all the discussion thereafter will be moving away from it towards the other side’s position. I do not find this argument compelling: starting with an ideal version full of the safeguards required in a free society, then forcing the other side to justify in full public view deviating from that position is surely superior to starting with a more severe draft then trying to claw back concessions.

One comment often made is that most of the points in Article 23 are already covered one way or another in statute or common law. Well maybe. No doubt there is a way that the old UK offence of arson in the royal dockyards can be read to protect the PLA base on Stonecutters Island but is that really how we want to go forward?

Another counter argument is that what is in the law is less important than how it is implemented. With due respect to the University Professor who advanced this point, it may be correct but it is not an argument for not making the legislation as fair and reasonable as possible in the first place. After all, would we rather the police and the courts were operating under the aegis of a bad law or a good one?

Finally there is the argument that article 23 is the "third rail" of Hong Kong politics and whoever touches it will be electrocuted. There is some truth in that. But an alternative possibility is that if a group is seen to be acting responsibly and getting a dangerous monkey off the back of Hong Kong people its members will earn respect.

In a situation where doing nothing is not an option and the alternatives are worse, that is a chance worth taking.