Hong Kong should reconsider enacting Article 23 legislation to nip support for independence in the bud
Eliza Chan says the formation of radical groups such as the Hong Kong National Party makes it vital for the city to have laws safeguarding national security, to protect long-term stability
Recently, a radical separatist group led by a former Occupy Central activist held a press conference announcing the formation of a “Hong Kong National Party”. The party aims to promote the independence of Hong Kong and the abolishment of the Basic Law.
As stated in the preamble and Article 1 of the Basic Law, “Hong Kong has been part of China’s territory since ancient times” and is “an inalienable part of the People’s Republic of China”. Article 12 of the Basic Law also provides that Hong Kong is a local administrative region of the People’s Republic of China, “which shall enjoy a high degree of autonomy and come directly under the central people’s government”. Therefore, the proposition made by the radical group is undoubtedly contrary to the spirit enshrined in the Basic Law.
While this is not the first time a group has rejected the fundamental values laid out in the Basic Law, the Hong Kong National Party can be considered a radical group at the extreme end of the political spectrum. Not only has it refused to recognise the Basic Law, it has even pledged to use “whatever effective means” available to break away from the central government.
The recent formation of such a radical group has sparked discussions on whether a group of Hong Kong extremists can challenge China’s sovereignty without any serious legal consequences.
Advocates of Hong Kong independence will not find a strong and infallible defence for their actions by relying on their entitlement to the freedom of expression. There is a general misunderstanding within Hong Kong that freedom of expression allows a person to express his or her opinion without any form of restraint.
Freedom of expression is not an absolute right under the laws of Hong Kong. In fact, it is expressly provided under Article 16(3) of the Hong Kong Bill of Rights Ordinance, which incorporated the International Covenant on Civil and Political Rights into Hong Kong local laws, that states that the exercise of the rights to freedom of expression carries with it special duties and responsibilities. Consequently, it may therefore be subject to certain restrictions, provided by law and which are necessary for the protection of national security, public order (ordre public), or public health and morals.
The Hong Kong Court of Final Appeal has also affirmed in the 1999 case of HKSAR versus Ng Kung Siu & Another (the “Flag Burning Case”) that while freedom of expression is a fundamental freedom which lies at the heart of civil society and of Hong Kong’s fundamental social values, it nonetheless is not an absolute right and its exercise might be subject to restrictions.
In this case, two demonstrators were convicted of desecrating the national flag and the regional flag by publicly carrying and waving defaced flags during a public procession.
Supporters of the two demonstrators alleged that freedom of expression should not be restricted in such a case by reason of “public order (ordre public)” since there was no evidence of violence or threat of violence. However, as expressly pointed out by the Court of Final Appeal, the term “public order (ordre public)” does not have any precisely defined boundaries.
It does, however, include what is necessary for the protection of the general welfare or for the interests of the collectivity as a whole. This includes the prescription for peace and good order, safety and economic order.
The Court of Final Appeal recognised that there were legitimate societal and community interests in protecting the national flag and the regional flag under the constitutional order of “one country, two systems”, with Hong Kong being an inalienable part of the People’s Republic of China. It was ruled that such interests were within the concept of public order (ordre public).
In short, the exercise of freedom of expression ought to be subject to the overriding principles of “one country, two systems” and national unity. Any advocacy of independence of Hong Kong not only constitutes a blatant contravention of the Basic Law, but also endangers the security, societal and economic interests of Hong Kong.
Furthermore, the spread of this unlawful and irresponsible concept of “independence” will heighten social tensions and create unnecessary anxiety in the community, which will in turn undermine the social stability and international reputation of Hong Kong.
Currently, there is no local legislation which expressly prohibits or criminalises the advocacy of Hong Kong independence. There are treason and sedition offences under the Crimes Ordinance of Hong Kong. These are, however, widely and vaguely defined and do not specify with sufficient clarity the conduct which would constitute treason and sedition.
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Given that existing local legislation does not provide sufficiently detailed guidance, it may be time for Hong Kong to reconsider the necessity of enacting such legislation under Article 23 of the Basic Law. However controversial, Hong Kong has a constitutional duty to enact laws to give effect to Article 23 of the Basic Law in order to maintain China’s sovereignty, unity and territorial integrity, and to preserve Hong Kong’s long-term stability and prosperity.
Article 23 provides that Hong Kong shall enact laws to prohibit treason, secession, sedition and subversive activities against the central government and to prohibit foreign political organisations or bodies from conducting political activities in Hong Kong.
It is common knowledge that most, if not all, developed and civilised nations have laws prohibiting treason and secession activities. While individual liberties are celebrated in the United States, commitment of treason, insurrection and subversive activities are strictly prohibited and US laws expressly prohibit such actions with criminal liability. For instance, there have been cases in the US where defendants were sentenced to imprisonment for advocating the overthrowing of the US government by force and violence, and for joining, willingly and knowingly, organisations advocating such a political agenda.
While the advocates of separatism or independence clearly do not represent mainstream views in the city, the recent emergence of radical and separatist groups is a wake-up call to the community of Hong Kong. The enactment of a carefully drafted legislation pursuant to Article 23 will be an effective means to combat any promotion of Hong Kong independence, along with other secession, sedition and subversive activities that would be harmful to the city’s long-term stability.
Eliza C. H. Chan is a solicitor