Last Lap

I first wrote about Article 23 legislation in September 2010 (“Why we must tackle Article 23 legislation”) shortly after becoming a columnist on this newspaper. I returned to the theme several times over the years including in December 2017 (“Enact Article 23 or Beijing may do it for us”). Naturally I was very pleased when chief executive John Lee Ka-chiu announced last month that we were finally going ahead and would complete the exercise this year. Getting enactment out of the way will end the uncertainty and kill off all the wild speculation about what might be in the new law.

The government issued a discussion paper late last month to launch the process. A particularly pleasing aspect of the paper is the evidently thorough research and relentless emphasis on preserving the common law legal system, with copious examples of practice in the United States, the United Kingdom, and other western nations to illustrate points for consideration. The determination that Hong Kong remain a part of the worldwide common law community has been a consistent part of China’s policy towards our city for decades. The Joint Declaration of 1984, the Basic Law of 1990 (as implemented from 1997 onwards), and the National Security Law itself promulgated in 2020, all stress its importance. The most recent high-profile reiteration was included in the speech by President Xi Jinping during his visit on 1 July 2022.

Despite this consistency the western media is still trying to claim that the latest step is a sign of China’s determination to make the Hong Kong legal system more like that in the mainland. Not only is this not the case, it is demonstrably the opposite of the truth. But I doubt this will change their false narrative.

So we are off to a good start, but I think we can do even better. Article 23 requires the SAR Government on its own to legislate to protect national security in seven areas (treason, secession, sedition, subversion, theft of state secrets, activities of foreign political bodies, and ties with such bodies). The administration is working on the basis that the NSL dealt with secession and subversion, so we only need to tackle the other five. I do not believe this formula is in the best long-term interests of Hong Kong. One hundred years from now when historians look back at the early years of the SAR, they will report that we were slow to fulfil our duty. There is nothing we can do about that now: we have been slow. But if they can also report that when we finally got round to it we only did five sevenths of the job, then that stain on our record will be there in perpetuity. It would be much better to cover all seven areas in the new law. Who knows, if we do a good enough job, the National People’s Congress could even feel confident enough to repeal the NSL. What should never have been necessary if we had done our job properly can be expunged from the record.

There are two aspects of the NSL that do not fit comfortably in the common law tradition and we should take the opportunity of the new law to tidy them up. There is no need to bring across to our own ordinance the presumption against bail in Article 42. Among the reasons to refuse bail is the relative seriousness of the charge. A charge under our new law will by definition be serious, and magistrates will no doubt give due consideration to this factor in exercising their judgement on bail. There is no need to tell them how to do their job.

The second is designation of judges to deal with national security cases (Article 44). Now I accept that constitutionally it is proper for Lee to promulgate that list; he is after all under our system the head of the whole shebang – executive, legislative, judicial. But the optics are bad. It enables our critics to say – falsely – that the chief executive is putting people on trial in front of “hand-picked judges”. We lose the argument because the truth is too complicated to explain. Better leave promulgation to the chief justice.

The next stage in the process is drafting the new Safeguarding National Security Ordinance after taking into account all the comments received during the consultation phase. This will require great care because there are so many tricky areas. For example, the Hong Kong administration is notorious for over grading documents. Routine papers can be classified as confidential or even secret. Where will we draw the line on what constitutes a state secret?

Then there is the issue of replacing the word “enemy” with “external forces”. Unless we are very careful we could find the boy scouts in trouble because of their international links, or other worthy organisations like Greenpeace, or animal protection societies. Where will the churches fit in? Or international aid agencies? There must surely be an element of hostility towards China to be present for an action to become an offence. Moreover the burden of proof must clearly be on the prosecution to prove the element, it should not be on Save the Whales to prove their innocence.

The paper alludes to precedents elsewhere for granting officials the power to keep someone locked up without judicial scrutiny. Do we really want to follow the UK and Singapore down this rabbit hole? We should also take the opportunity to set a time limit for extending bail under Section 52 of the Police Force Ordinance.

All these aspects require careful work and thorough scrutiny. Although I won’t be popular saying so, I think it would be better if we next had a white bill before the blue one to get the detail right. This would take time which probably pushes enactment into the next LegCo session rather than before the summer recess. One possible downside of having a 100 per cent loyal legislature could be skimping on the in-depth scrutiny.

But as my old grandmother used to say: “If a thing is worth doing, it’s worth doing well”.