Assurances over final version of Article 23 are unconvincing
I would like to respond to the letter from Solicitor-General Bob Allcock (South China Morning Post, October 19), who was replying to my article headlined 'Anti-subversion proposals undermine the rule of law' (Post, October 16).
I argued that the current wording of the Article 23 consultation paper could have unintended consequences. And I gave an example regarding protesters deliberately not applying for permission from the police, organising a demonstration in a highly crowded area to protest against perceived interference by the Chinese government. During the protest, a disturbance breaks out as the protesters are forced to leave by the police. I argued that the wide language in the proposals made it possible to convict them of treason, secession, sedition, and subversion.
Mr Allcock does not agree that my example would qualify as 'treason', because treason involves 'levying war', with 'high thresholds'. He says: 'Merely organising an unnotified demonstration that impedes the traffic would not come anywhere near these high thresholds.'
I disagree and refer to footnote 17 of the consultation paper: ' 'War', here, is not limited to the true 'war' of international law, but will include any foreseeable disturbance that is produced by a considerable number of persons . . . It is not essential that the offenders . . . be armed with military weapons.'
Mr Allcock also says my example would not be 'sedition'. However, the current conception of sedition involves 'inciting others to commit treason'. Assuming that my example qualifies as treason, then any attempt by the protesters to gather support will qualify as sedition.
The solicitor-general argues that although my hypothetical scenario may qualify as 'serious unlawful means' sufficient to trigger secession and subversion, there will be 'adequate and effective safeguards' to protect human rights. Perhaps the final version of Article 23 will contain such safeguards, but I doubt it. At present, passages relating to secession and subversion in the consultation paper are from the Anti-Terrorism Ordinance which says 'advocacy, protest, dissent or industrial action' are protected.
These are not the same as the right of expression and demonstration, they are merely examples of it. It is unclear whether borderline manifestations of the right of expression and demonstration fall within the provisions. In particular, whether civil disobedience is protected.
Finally, Mr Allcock believes we can rely on the Judiciary to give a narrow meaning to 'any broad provisions'. That may be so. Unfortunately, the interpretation of the Basic Law ultimately rests with the National People's Congress (NPC).
It may, therefore, be possible for the government to again 'invite' the NPC to intervene and issue an interpretation of Article 23 which will bind our courts.