A question of security and freedom
After trying to avoid the issue for more than two years, the Government is
Just like a fruit which falls when it is ripe. A senior NPC official used that analogy in response to a recent question about when the much-anticipated anti-subversion law should be introduced in the SAR.
But Qiao Xiaoyang was quick to add that the precise timetable is a matter for the SAR Government. As vice-chairman of the Legislative Affairs Commission under the National People's Congress, he is in town for commemorative activities marking the 10th anniversary of the promulgation of the Basic Law.
And, almost three years after the post-handover charter took effect, the controversial article is the only provision in the 160-article constitution yet to be implemented. It requires the Government to legislate against treason, secession, sedition and theft of state secrets, in addition to subversion.
Until recently, there has been little sign of it moving towards doing so. But now, both Beijing and SAR officials appear to have tacitly agreed the time is finally ripe for putting this sensitive issue on the legislative agenda.
It looks likely that a draft bill will be released for public consultation late this year or early next year. And there are suggestions that the legislative process on Article 23 will get under way during the next Legislative Council session, which begins in October.
In the past few months, there have been signs of a subtle change in the attitude of senior officials towards this sensitive topic. They have indicated that initial research is already under way into how to frame appropriate legislation. Plans are afoot to consult the public at a later date, while the Central Government will also be asked to give its views. This represents a change of emphasis from the previous official line. For more than two years following the handover, it was said that there was no urgent need to legislate on Article 23.
This formerly relaxed attitude towards the issue has been replaced by a greater emphasis on the SAR's obligation to safeguard the interests of the state, in such areas as territorial integrity and state secrets.
If that obligation was not emphasised over the past few years, it is only because the issue was seen as being extremely politically sensitive, especially in the early years of the SAR.
As confidence in the 'one country, two systems' experiment was still shaky, a debate on this divisive issue was the last thing that Beijing and the SAR leadership wanted. Nor would it have been possible to hold such a debate in a calm and rational manner, during a period when fears about mainland interference were still very much alive in the local and international communities.
Even arch-conservatives in the pro-China camp showed self-restraint in not putting pressure on the SAR Government to act more quickly on the issue, realising that this would put the the Tung administration in a difficult position.
Human rights activists and pro-democracy forces, happy with this official ambivalence about the legislative timetable, also tried to avoid putting this issue in the public spotlight.
But this prolonged honeymoon period for everyone from security and justice officials to human rights activists now seems to be drawing to an end. And the legacy of Article 23, which was inserted into the Basic Law in the final months of drafting, after the June 4 bloodbath in 1989, must now finally be addressed.
At one private get-together, security officials explained the need to legislate. One said there were genuine concerns about the lack of provisions to prohibit activities such as subversion, sedition and theft of state secrets. Activities calling for independence for Taiwan and Xinjiang, as well as the danger of theft of secrets from the PLA garrison in the SAR were given as reasons for urgently bringing in the new legislation.
To the average citizen, such threats seem highly remote. Even at the height of the 1989 Beijing-led student protests, the local community never concurred with mainland officials' assertions that Hong Kong had been used as a base to try to sow seeds of subversion.
Local people would find it even harder to believe the SAR posed a threat to the state on such matters as sedition, subversion or theft of state secrets. Most people would not accept even that the activities by local followers of the Falun Gong, which has been outlawed as a cult on the mainland, fall into this catego- ry.
The lack of any real threat to state sovereignty and security over the past three years may be largely because of the self-restraint of activists and the community at large, since people have avoided words and deeds that might unduly antagonise Beijing.
Falun Gong members have tactfully organised their protests in a way that avoids direct confrontation with Beijing or the SAR Government. Local activists championing greater democracy and human rights on the mainland have made efforts to make themselves heard while still keeping their activities relatively low-key.
This suggests that, even without legislation on Article 23, the provision has had a deterrent effect on the local community. People dare not test the limits of Beijing's tolerance towards activities and speeches that might be perceived as a threat to its sovereignty.
The dilemma is that neither the SAR nor Beijing feel they can afford to take the risk of relying solely on such self-restraint in the long term. Not because there have been any recent signs of more radical behaviour or rash challenges to Beijing. Rather because the price of delaying any longer is that it will only become even more difficult for officials to justify legislating at some future date.
As New York University law lecturer Jerome Cohen has pointed out, the issue is set to divide the community and 'further test Beijing's tolerance'. This is because deciding how to draw a line between civil liberties and the need to uphold sovereignty on matters such as subversion, sedition and state secrets will be extremely difficult.
Fundamental differences between SAR and mainland systems will not be easy to reconcile when such concepts as state security are being enshrined as legal provisions in common law. It will require political skill, tolerance and trust from both the SAR and Beijing to formulate legislation that fulfils the obligations under Article 23 without compromising the freedoms enjoyed by the people.