Hong Kong Basic Law

Mainland Chinese legislation 'no substitute' for Article 23

PUBLISHED : Thursday, 10 April, 2014, 4:37am
UPDATED : Thursday, 10 April, 2014, 4:37am

The mainland's State Security Law cannot serve as a substitute for local legislation under Article 23 of the Basic Law, an expert on the mini-constitution said yesterday.

Professor Albert Chen Hung-yee said the mainland law did not cover the matters involved in Article 23. The clause, long controversial, requires the city to enact a law to prevent treason, subversion and related acts.

The university of Hong Kong law academic was weighing into the debate over a suggestion by mainland scholar and Basic Law Committee member Professor Rao Geping that the State Security Law could be temporarily enforced in Hong Kong if the special administrative region delayed its own legislation.

An attempt to implement Article 23 was withdrawn in 2003 after massive protests.

Chen, who also sits on the Basic Law Committee, said adopting the mainland law went against the legislative intent of Article 23, which stipulated that Hong Kong "shall enact laws on its own" to prohibit treason, subversion and other acts.

"In fact the State Security Law is not exactly a law to handle the issues involved in Article 23," Chen told Commercial Radio.

"It mainly authorises national security departments to execute certain powers. Most of the issues involved in Article 23 are covered by the Criminal Law on the mainland. The Chinese Criminal Law is not applicable in Hong Kong as Hong Kong already has its own."

Rao's suggestion, quoted in Bauhinia magazine "shocked" veteran Beijing loyalist and Legislative Council president Jasper Tsang Yok-sing. But Basic Law Institute chairman Alan Hoo said that in the absence of an Article 23 law, use of the mainland measure could be triggered in an emergency.

Former chief secretary Henry Tang Ying-yen joined in yesterday, saying he completely disagreed with Rao's suggestion.

The magazine article quoted Peking University scholar Rao as saying mainland academics had been discussing the idea as one of several option for anti-subversion laws in the city.

"I completely disagree with Rao's suggestion … because comprehensive and in-depth consultation and discussion is necessary for such a sensitive piece of legislation," Tang said.