The devil was in the details of Article 23
It is only just over four years since the crisis surrounding Regina Ip Lau Suk-yee's proposed national security legislation brought half a million people on to the street to protest, and Mrs Ip resigned and left Hong Kong. Now that she has returned and is running for election, she has given a half-hearted apology for her handling of the Article 23 proposal while, at the same time, claiming that most of her critics did not read it and that the details were not so bad.
I spent a lot of 2003 reading and discussing Mrs Ip's proposals. The truth is that the devil was in the details. Only on close reading did their frightening nature emerge.
Mrs Ip was right to say that part of the law looked no worse than the colonial laws on treason and sedition which it would have replaced. However, the old colonial laws had to be read subject to the modern human rights provisions in the Basic Law. Hong Kong's last treason prosecution, of George Wong in 1946 for betraying to the Japanese secret police several people whom they tortured to death, may have complied with those standards. The last sedition prosecution, of Fei Yi-ming and Lee Tsung-ying in 1952, almost certainly did not, and could not be carried out in the same way today.
However, it was not the repetition of parts of the colonial laws which generated alarm. It was the inclusion of new provisions with no colonial counterpart. These included new offences of 'secession' and 'subversion' - well known instruments of oppression on the mainland, but previously unknown to Hong Kong law.
'Secession' and 'subversion' were there because they are referred to in Article 23 of the Basic Law. That is not much of a justification, since Article 23 - widely believed to have been inserted as a late reaction to events in Beijing in 1989 - is itself a breach of the 1984 Sino-British Joint Declaration, which was supposed to guarantee Hong Kong freedoms after 1997.
The two worst provisions in Mrs Ip's bill did not even have the justification of being required by Article 23.
The first gave the power to ban any Hong Kong organisation which had ever given money to a mainland organisation, if the mainland group was declared subversive by Beijing. Such a declaration was to be conclusive as to the subversive nature of the organisation.
The power was believed to be aimed at Falun Gong, but would have extended to any church, school, society or other group which had ever given money to a mainland group, even if that group had been legal at the time and was only banned later.
The second was a power to search all premises for seditious publications without a warrant. The decision to carry out a search was to be left to the police, without any intervention from a court or a lawyer. This power was so extraordinary that I asked one of Mrs Ip's assistants in the Security Bureau whether it had been left in by accident when copying from some old law, or whether it was intended to be used. 'We intend to use it,' was his reply. A warrant is simply court authority and can be obtained very quickly from a magistrate when speed is important. It provides a legal check that a search has a legitimate purpose and is not an abuse of power by the police.
The idea of a seditious publication is vague and not compatible with modern ideas of free speech, which include the right to publish views that others may find offensive. Because of its vagueness, it would be difficult for a magistrate to be satisfied that a publication was indeed seditious.
The only logical reason for the new power to search without a warrant was to turn Hong Kong into a police state where officers could break into any home at any time to search for publications offensive to those in authority.
I am not aware that Mrs Ip has ever apologised for adding this power to her Article 23 bill. For that reason, I find her return to public life sinister.
Paul Harris is a barrister and was the founder of Human Rights Monitor
