Before the end of the year, Hong Kong will finally get its own national security legislation as required by Article 23 of the Basic Law. In his election campaign, which has fast turned into a triumphant procession, sole approved candidate John Lee Ka-chiu agreed in response to media questions that it would be “one of” his priorities, though he was careful not to say it would be the only or main one.
Given a supportive legislature, our fifth chief executive is sure to succeed where the first failed and numbers two, three and four opted not to try. Looking back I see that I have written four times about this subject in the last 12 years. From that perspective, and from my observations – still fresh in the memory --of how we failed in 2003, I would like to offer some advice on how best to proceed. It is important that we learn lessons from the past so that we not only succeed this time, but do so in a way that helps to ease tensions rather than exacerbate them. Sometimes, process is as important as content.
First up Lee needs to decide if the legislation should cover all seven areas laid down in Article 23, or only those matters not covered by the National Security Law enacted in 2020. In my view it is essential that the draft legislation presented to the Legislative Council be comprehensive and do everything specified in the Basic Law on a stand-alone basis. To do otherwise – to say, well the NSL already deals with some of them, let’s just have a quick patch up job to cover the remainder – would risk making our new law a permanent memorial of our failure, for 25 years, to perform a simple task. Far better to do the whole thing in one go and complete our constitutional duty.
The second potential pitfall concerns speed. All 90 of our elected legislators are confirmed patriots, and 89 of them are associated with pro-government parties. The temptation must be to slap the draft on the Legco table, blow a whistle and urge a quick vote to get through the painful episode as quickly as possible. But that would in my view be a mistake. The legislation should proceed at a measured pace through all the normal stages, allowing plenty of time for scrutiny by members.
It would be even better if the “blue” bill – the final version of the government’s intended legislation – were preceded by a paper setting out the government’s broad objectives and a “white” bill giving a first draft for the public to get their teeth into. It was the refusal by the government to issue such a draft that effectively torpedoed the talks in 2003. Up to that point negotiations between the government and the Article 23 concern group had been proceeding quite well and had found compromise solutions in a number of key areas. To follow the practice this time would be more reassuring and would be an important tool for public education about national security. Transparency should be the name of the game here. After all, in addition to a sceptical local population, the many critics of China and Hong Kong overseas will be queueing up to seize any opportunity to provoke trouble. We should not be giving them the ammunition to do so.
There are two aspects of the NSL which may or may not carry over to the new law. They are Articles 42 and 44 dealing respectively with granting of bail and designation of judges. The first says that bail should not be granted unless the judge has sufficient grounds for believing that the defendant will not continue to commit acts endangering national security. I really wonder if this presumption against bail adds anything to existing practice. Magistrates and judges in Hong Kong make bail decisions every day and are very experienced in getting the balance right. In most cases it is right to grant bail because the defendant has not yet been convicted of any offence and in principle should not be denied freedom until the conclusion of the trial. But there are well established exceptions to the general rule. Examples include seriousness of the offence, weight of evidence, likelihood of reoffending, danger of interfering with witnesses and most fundamentally possibility of absconding to avoid trial. Many years ago when I was prosecuting an ICAC case I successfully objected to bail for the defendant quoting one of these grounds. Common sense suggests that any prosecution for a national security offence would be very serious and ipso facto create a presumption against bail unless the judge was completely satisfied.
Similarly with designation of judges. The NSL provides that all cases brought under it should be heard by judges from a special list issued by the chief executive. Under our existing system, the chief executive appoints all the judges anyway. Thereafter the chief justice is responsible for allocating judges to specific cases. Over time some judges tend to specialize in different areas of the law (family law, contract law, construction disputes etc) and no doubt some with a particular interest and expertise in national security will emerge as the acknowledged experts. I really query the usefulness of a special list. This can safely be left to the chief justice.
In my view neither aspect needs to be repeated in the Article 23 legislation.
I have one final suggestion. The government should produce a chart with the Hong Kong provisions in one column, then set out in adjacent columns the equivalent provisions in each of the major common law jurisdictions – USA, UK, Canada, Australia, New Zealand. This too would be an important part of national security education for Hongkongers. It would also put the onus on overseas critics of any individual provision to explain why their citizens deserve protection in such matters, and ours do not.