Going ahead with Article 23 law should not be a difficult process
No reasonable person would disagree with Mike Rowse ('Why we must tackle Article 23 legislation', September 21) that Article 23 of the Basic Law imposes on the Hong Kong SAR the duty to enact legislation to protect national security.
Such an interpretation of the article was shared by even the most vocal critics of the government's 2003 national security bill, namely the Hong Kong Bar Association and the Article 23 Concern Group, made up of some distinguished barristers.
The special working group proposed by Mr Rowse to draft a new bill is unnecessary. As the purpose of the exercise is to revise existing laws to render them consistent with the Basic Law's guarantees about personal liberties, the work is within the remit of the Law Reform Commission. Nor is there a need to draft a bill from scratch.
The 2003 bill more or less struck the right balance between national security and the individual's rights. Public reactions were initially mild and balanced. The subsequent vehement objection was mainly because the Security Bureau mishandled the whole exercise. The legal issues raised by the bill were too technical for the man in the street to understand.
The belligerent attitude displayed by then secretary for security Regina Ip Lau Suk-yee incensed the public and, more importantly, the libertarian barristers, whose criticism of the bill was regarded by the public to be impartial and balanced. The bureau's refusal to provide for a public interest defence for disclosure of state secrets worried the media and it attacked the bill.
The government compromised. It provided the public interest defence and said organisations linked to those banned on the mainland on national security grounds would not be automatically outlawed in Hong Kong and police would not have the power to enter and conduct a search in private premises without a court warrant. After these belated concessions, there remained only one contested issue.
While the critics, including the pro-democracy legislators, insisted on adopting the 'direct and immediate connection' test in the Johannesburg Principles (adopted by a group of experts in human rights in 1995) to define the offence of sedition, the government refused on the grounds that the test was 'unnecessarily restrictive' and would 'not produce appropriate results in all cases'. Also, prevailing tests adopted by the courts in interpreting the International Covenant on Civil and Political Rights were that of 'balancing competing interests'. In order to prepare a new bill, only this single issue should be entrusted to the Law Reform Commission for further study.
This study should be completed in time for a white bill - something insisted upon by the critics in 2003 - to be published for public consultation immediately after the chief executive and Legislative Council elections in 2012. Since the white bill would take account of the extensive debates in 2003, the blue bill could be published in 2013 and the law enacted in the 2013-14 legislative year.
Ng Hon-wah, Pok Fu Lam
