How Hong Kong’s second stab at Article 23 can avoid the mistakes of 2003

Imagine if all sides handled this calmly, maturely and with maximum transparency, with sincere attempts to find common ground rather than inflammatory oratory

Mike Rowse

Published: 12:45pm, 11 Jul, 2021

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We sometimes overthink and make things seem more complicated than they really are, or are so fixed in our thinking that we overlook opportunities to do things differently – and better. These thoughts came to mind as the latest debate began on how Hong Kong should enact its own national security legislation as required under Article 23 of the Basic Law.

The deputy head of the Legislative Affairs Commission of the National People’s Congress (NPC) Standing Committee, Zhang Yong, said last week that the loopholes in Hong Kong’s security laws needed to be plugged. This sparked a flurry of interest and all manner of speculation ensued: why was the call being made now, was not the same ground effectively covered by the national security law, did the public sufficiently trust the Hong Kong government to draft such a law, how to rebuild that trust and so on.

Everyone is, of course, mindful of the events of 2003 when the administration’s first attempt to implement Article 23 ended in disarray amid the biggest anti-government demonstrations at the time. The administration was forced to withdraw the bill and was so scarred by the experience that successive chief executives declined to take up the challenge in the ensuing 18 years.

There is a case for caution, because of the danger that passions will again run high. But there is also an opportunity to mend some of the damage to relations between the administration and the community.

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Perhaps it would help if we returned to basics. Article 23 is forthright and unambiguous: “The Hong Kong special administrative region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the central people’s government, or theft of state secrets, to prohibit foreign political organisations or bodies from conducting political activities in the region, and to prohibit political organisations or bodies of the region from establishing ties with foreign political organisations or bodies.”

So we know what has to be in it, and it is our job to do it on our own – no need to coordinate with anyone else.

What can we learn from the mistakes made? Back in 2003, there were several issues: the government gave the impression that because it (thought it) had a majority in the Legislative Council it need not pay much attention to public opinion; it could proceed without issuing a white bill to flush out potential problems and address public doubts; there were concerns whether the law would contain the usual safeguards consistent with a common law legal system.

Looking at that list, is it any wonder so many of us had a strong sense of déjà vu during the extradition saga of 2019?

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Most of the key issues are covered by authoritative documents. For example, Article 8 of the Basic Law provides that the common law system shall be maintained. Articles 4 and 5 of the national security law affirm the protection of human rights and preserve the principle of the rule of law.

Based on these source documents, it would be entirely reasonable for the administration’s draft of Article 23 legislation to contain all the normal safeguards of the common law system. It would also be helpful if the administration published its detailed proposals in the form of a white bill, and then engaged with concern groups. This will take time, and it is important to move quickly. But it is more important to get it right.

Those concerned about the legislation also need to exercise self-control. Instead of getting on their high horses and attacking every aspect of the draft to stir up public sentiment, they must adopt a measured approach. Under the spirit of improving the legislation, they should make specific, reasoned proposals for amendment if they see cause.

There will be voices urging new security minister Chris Tang Ping-keung to rush the bill through Legco given the administration’s clear majority. Both he and newly appointed chief secretary John Lee Ka-chiu are no-nonsense long-time police officers and may be tempted to apply “minimum necessary (political) force” to get the job done quickly. In my view, this would be a mistake. The events of the last two years have left all parties bruised. The community needs to heal.

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Further down the road, when we have two parallel sets of legislation covering much of the same ground, there will be implementation and coordination issues that need to be addressed. We will just have to jump those fences when we come to them. But those thoughts should not be reason to paralyse the administration for another generation.

Imagine a scenario where a controversial political issue is handled calmly and maturely by all sides and with maximum transparency. Where there are sincere attempts to find common ground rather than engage in inflammatory oratory or crude power exercises. Wouldn’t that be a pleasant change?

For 24 years, Article 23 has been a thorn in the side of the Hong Kong body politic. How nice if a skilled surgeon could now remove it so the healing could begin.

Mike Rowse is the CEO of Treloar Enterprises