Like all columnists, I want to be read. And the only way I know that I am being read is when I receive feedback. I have received my share of hate mail and, while it is unpleasant, it does reassure me that I am being read. The worst thing is to get no feedback at all to a column. It is as though it was never written, never existed.
And so I was happy to see a letter from James O'Neil, deputy solicitor general in the Department of Justice, commenting on my recent column on the Hong Kong government's proposal for implementing the 'state secrets' provision of Article 23 of the Basic Law. Mr O'Neil must have been writing in an official capacity, since he cited his title in the letter. That being the case, the contents would have been approved by the Justice Department. That is to say, the views expressed are those not just of an individual but of the Department of Justice.
To recap, I had pointed out that the Hong Kong government has carefully avoided using the term 'state secrets' in the national security bill because of the mainland's notoriously loose definition of the term. However, I said, if the Standing Committee of the National People's Congress were to issue an interpretation of Article 23, Hong Kong's efforts would be for naught because the Standing Committee would no doubt apply the mainland's concept of state secrets.
I do not see how the mainland's definition of state secrets can be avoided, once the Standing Committee is involved. Article 23 uses the term 'theft of state secrets', and the special administrative region (SAR) says it is implementing Article 23, so clearly the concept of state secrets is central. No doubt, the Standing Committee would employ the mainland's definition of state secrets to interpret Article 23, even if the term itself is missing in the Hong Kong legislation.
After all, the Basic Law is a national law, while the Official Secrets Ordinance is merely a local law. It is not possible for a local law to override a national law.
If the Justice Department and Mr O'Neil think that my position is 'far-fetched' and 'fanciful', I wonder if it would be willing to make a binding commitment that the SAR government would never, under any circumstances, seek an interpretation of Article 23 from the NPC Standing Committee. That is the only way to ensure that the scenario I put forth will never occur.
Mr O'Neil says the Official Secrets Ordinance was approved by the Sino-British Joint Liaison Group before it was enacted in 1997. That is to say, it was endorsed by both the British and Chinese governments.