Enacting Article 23 national security laws in Hong Kong would be better than the current legal uncertainties

Rachel Cartland says Hong Kong needs to restart plans to implement national security legislation, given the government’s use of ad hoc measures against political figures

PUBLISHED : Tuesday, 04 September, 2018, 9:00pm
UPDATED : Tuesday, 04 September, 2018, 9:07pm

In the years since reunification, Hong Kong has disproved the gloomy prophecies and remained stable and prosperous, despite some social problems. On the other hand, there have also been misfortunes and mischances.

Of the past two decades, 2003 was undoubtedly Hong Kong’s most trying and momentous year. The early months were dominated by the outbreak of severe acute respiratory syndrome: a disease of unknown origin that killed almost 300, paralysed the economy, and made Hong Kong, for a time, an international outcast. Although people mostly responded well to the intense hygiene measures, there was an atmosphere of gloom and those who could fled to safer places.

A quarantine strategy succeeded and, by the middle of the year, the crisis was over. The emotional trauma, however, lasted longer and somehow, the government did not know what to do. Neither the economic revival plans nor HarbourFest hit the right note.

Then, in the same year, with what might be considered gross insensitivity, the government decided to continue with its plans to implement Article 23 of the Basic Law and to introduce legislation to deal with treason, sedition, subversion and so on against the central government. This would have been a controversial exercise at any time but how much more so when the community was in such a febrile state.

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To make matters worse, there was no proper public consultation on this complex, consequential initiative. An excuse that was heard was that ordinary people would not be able to understand these sophisticated proposals and should be bypassed. Not surprisingly, there were massive, though largely peaceful, demonstrations against the government.

The government made the decision not to proceed any further. Ironically, behind closed doors, officials had for some time been working to improve the draft law. The refined product, if given a chance, might well have met the concerns that had led to those demonstrations. However, it was not to be, and Article 23 was indefinitely shelved.

As far as anyone can tell, this still seems to be the position. Indeed, there is talk that the government is so determined to maintain this status quo that it is deliberately using all sorts of other methods to achieve the same aims without raising the spectre of Article 23 again.

And there does seem to be a pattern of ad hoc action being taken against political figures: disqualifications for election, an unusual application of the Societies Ordinance, which was traditionally used against triads, and so on. Although there may be legal justifications for each of these decisions, overall, they give an impression of untidiness and incoherence.

The old aphorism, “markets hate uncertainty”, is true for more than markets. What we would like in many aspects of our lives is a set of clear and justifiable rules, which are implemented humanely and as necessary with some generosity and discretion. At this juncture, Article 23 legislation would actually represent progress from the present situation where activists, politicians and lawyers cannot be sure what counts as illegal or criminal.

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Pushing Article 23 forward would require courage and diplomatic skills. Nonetheless, the work that was done in 2003 would form a basis for refinement and, this time round, open discussion. Most people in Hong Kong treasure free speech, just as they abhor violence and do not see it as the right way to advance an agenda. Although some speak up for independence, irredentism is one of the key principles of Chinese nationhood.

There will be complexities to overcome, but Hong Kong has brilliant legal minds and a largely pragmatic population. Hong Kong used to be famous for its ability to overcome any difficulty, but this self-confidence seems to be faltering. Surely we can rediscover our strength and find a workable solution to a historic problem that will benefit us all.

Rachel Cartland is director of Cartland Consulting and a former assistant director of Social Welfare in the Hong Kong government