Banning separatist party must be done within the local law
While the stated aim of the Hong Kong National Party breaches the sovereignty of “one country”, any move to outlaw it must be in accordance with the local law that “two systems” allows
The Hong Kong government is controversially seeking to outlaw a pro-independence party for the first time. From the “one country” perspective, there is clearly no room for political bodies whose aims are fundamentally in breach of sovereignty and national unity.
But our “two systems” makes it imperative for the government to ensure that all actions are taken in accordance with the local law.
The crackdown comes at a time when the perceived pro-independence movement has become less active. Many people might not even be aware of its existence had the government not taken action against the Hong Kong National Party, which was established in 2016 with the aim to build “an independent and free Republic of Hong Kong”.
That the move to outlaw the party comes before the enactment of the national security law under Article 23 of the Basic Law has fuelled further speculation. What is clear, though, is that the government is getting tougher against separatism.
Politically, the zero-tolerance approach is to be expected. Beijing has increasingly been putting more emphasis on “one country”.
Addressing the city’s 20th reunification anniversary last year, President Xi Jinping made clear that the red line of sovereignty must not be crossed. Chief Executive Carrie Lam Cheng Yuet-ngor has also said she would not tolerate anyone breaching the red line.
Legally, the government must act within the law. So far, officials have been pursuing the matter under the Societies Ordinance, with the party given an ultimatum to explain itself within 21 days.
Security chief John Lee Ka-chiu only repeated Xi’s red line remarks, without elaborating what the party had done wrong. Party co-founder Andy Chan Ho-tin can lodge an appeal to the Executive Council.
Whether such a ban can pass the legal test remains to be seen. The Societies Ordinance was first enacted to deal with triads and was amended by the British colonial government to prohibit political liaison overseas amid the rise of communism. It was later broadened by the provisional legislature to cover national security.
It has been suggested that the crackdown may violate the Basic Law protection of freedom of association. Such freedom is, of course, not absolute.
But even when the party’s aim clearly breaches national unity, critics ask what it has done to pose any genuine threat to national security.
The police are of the view that even if the party had yet to resort to violence, its leader’s pledge to achieve independence by “whatever effective means” poses an imminent threat to national security.
Whether the existing law can handle the matter without legislation under Article 23 will be closely watched.
The case may well end up in the city’s courts for a ruling, which may prompt the National People’s Congress Standing Committee to step in. Officials must be able to demonstrate that the ban is in accordance with the law and the principle of “one country, two systems”.