I wonder if in life we don’t sometimes overthink things, and make them seem more complicated than they really are. Or be so fixed in our thinking that we overlook obvious opportunities to do things in a different – and better – way. These thoughts came to my mind as the latest debate began on how Hong Kong should address the requirement to enact its own national security legislation as laid down in Article 23 of the Basic Law.
The deputy head of the legislative affairs commission of the National People’s Congress Standing Committee, Zhang Yong, said last week that there were loopholes in Hong Kong’s security laws which needed to be plugged. His call sparked a flurry of interest including commentaries and discussions on radio talk shows. All manner of speculation ensued. Why was the call being made now, was not the same ground effectively covered by the National Security Law promulgated last year by the NPC, did the public sufficiently trust the SAR government to draft such a law, how to rebuild that trust and so on.
Everyone is of course mindful of the events of 2003 when the administration’s first attempt to implement Article 23 ended in disarray amid the biggest anti-government demonstrations in our history, at least up to that point. The administration was forced to withdraw the bill and was so scarred by the experience that successive chief executives have declined to take up the challenge again in the ensuing 18 years.
There is a case for caution, because of the danger passions will again run high. But there is also an opportunity to mend some of the damage to relations between the administration and the community. And it is never too late to learn important lessons from history.
Perhaps it would help if we returned to basics. Article 23 is forthright and unambiguous “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.”
So we know what has to be in it, and it is our job to do it on our own, no need to coordinate with anyone else.
What mistakes have been made in the past when preparing for controversial legislation, and what can we learn from them? Back in 2003 there were a number of issues: the government gave the impression that because it (thought it) had a majority in the Legislative Council it need not pay much attention to public opinion; it could proceed without issuing a White Bill to flush out potential problems and address public doubts; there were concerns whether the law would contain the usual safeguards consistent with a common law legal system.
Looking at that list, is it any wonder so many of us had a strong sense of déjà vu during the extradition saga of 2019?
Most of the key issues are covered by authoritative documents. For example Article 8 of the Basic Law provides that the common law system shall be maintained. Articles 4 and 5 of the National Security Law itself affirm the protection of human rights and preserve the principle of the rule of law.
Based on these source documents, it would be entirely reasonable for the administration’s draft of the Article 23 legislation to contain all the normal safeguards of the common law system. It would also be helpful if the administration published its detailed proposals in the form of a White Bill, and then engaged with concern groups. This will take time, and it is important to move quickly. But it is more important to get it right.
Those concerned about the legislation also need to exercise self-control. Instead of getting on their high horses and attacking every aspect of the draft to stir up public sentiment, they must adopt a measured approach. Under the spirit of “improving national security legislation” they should make specific, reasoned, proposals for amendment if they see cause.
There will be voices urging new minister for security Chris Tang Ping-keung to rush the bill through LegCo to take advantage of the administration’s clear majority. Both he and newly appointed chief secretary John Lee Tung-kwok are no-nonsense long time police officers and may be tempted to apply “minimum necessary (political) force” to get the job done quickly. In my view this would be a mistake. The events of the last two years have left all parties bruised. This is a time when the community needs to heal.
Further down the road, when we have two parallel sets of legislation covering much of the same ground, there will be implementation and coordination issues that need to be addressed. We will just have to jump those fences when we come to them. But those thoughts should not be reason to paralyse the administration for another generation.
Imagine a scenario where a controversial political issue is handled calmly and maturely by all sides and with maximum transparency. Where there are sincere attempts to find common ground rather than engage in inflammatory oratory or crude exercises in power. Wouldn’t that be a pleasant change?
For 24 years Article 23 has been a thorn in the side of the Hong Kong body politic. How nice it would be if a skilled surgeon could now remove it so the healing could begin.