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Tuesday, February 25, 2020, 00:32
Time has come to push enactment of Article 23
By Ho Lok-sang
Tuesday, February 25, 2020, 00:32 By Ho Lok-sang

Over the weekend, I joined an online forum on the enactment of Article 23 in the Basic Law. The forum was organized by legislator Junius Ho Kwan-yiu, and the panel included, apart from myself, barrister Lawrence Ma Yan-kwok, former home affairs secretary David Lan Hong-tsung, legislator Junius Ho, Hong Kong Federation of Education Workers president, Mr Wong Kwan-yu, and a former member of the Chinese People’s Political Consultative Conference National Committee, Dr Lew Mon-hung. The panel unanimously agreed that the enactment of a national security law according to Article 23 of the Basic Law is needed, as national security is a universally cherished objective across the world.

Still, Dr Lew strongly warned that pushing too hard without public support could backfire. He proposed that a preparatory committee be formed to start discussion and build a consensus, and that we need to avoid repeating the mistake as in the case of the fugitive-law amendment bill. Ho takes a somewhat different view, saying that some laws are not popular but are still needed in the interest of society. Dr Lan agrees with Ho that we cannot afford to procrastinate, saying that almost 23 years have passed since the handover. The promise from the central government is that there will be no change in Hong Kong’s way of life and institutions for 50 years, i.e., up to 2047. Dr Lew warns, however, that it will be risky, especially for the pro-establishment camp, if the government at this point tries to push the Article 23 legislation too hard. The priority now, he stresses, is to fight the novel coronavirus epidemic and revive the economy. It will already be a tough fight for the pro-establishment camp to maintain the majority advantage in the upcoming Legislative Council election in September. Election results could turn even uglier if something goes wrong over the push for the Article 23 enactment.

We all need to work together to see to it that Article 23 legislation is done in a way that can materially benefit national security and territorial integrity, and at the same time is compatible with Hong Kong people’s freedoms within the law

In my view, Dr Lew’s point about the importance of building support for Article 23 enactment is valid. He stresses that “one country, two systems” means that the enactment of Article 23 must not undermine freedom of speech and an independent judiciary in Hong Kong as promised under the Basic Law. As much as I agree with him on this in principle, however, I think we all need to note that in a civilized society, there are always limits to freedom of speech. For example, even in the European Union, anti-Semitic hate speech and denying the Holocaust are against the law. We need therefore to define clearly what is unlawful speech. The demarcation between lawful and unlawful speech must be transparent and reasonable, with due regard to the intent of Article 23. In particular, I would argue that while Hong Kong people can criticize specific policies and acts of officials on the mainland with a view to improving public governance, we all need to respect the political system on the mainland. Speech with the intent to change the political system on the mainland or to engineer regime change on the mainland is undemocratic and should be deemed unlawful. While in general there should be freedom of association, political parties with the specific goal of severing Hong Kong’s ties with the mainland or of building an independent Hong Kong “nation” cannot be consistent with the spirit of Article 23 and should be outlawed.
Wong says that Article 23 has been demonized by legislators in the opposition camp for a long time. Similarly, Ho thinks that trying to convince opposition legislators to work on the enactment of a national security law according to Article 23 is like “asking a tiger for its hide.” Having served in LegCo for years alongside legislators in the opposition camp, Ho has been totally disillusioned by the behavior of these legislators.
I am not as pessimistic as Ho. It is true that too often, the kind of language used by many opposition camp legislators may make one wonder if they are more interested in insulting people and drawing media attention than in tackling problems and solving problems. This, unfortunately, is to a large extent a result of the nature of ballot-box politics. A politician who needs to get votes will want to attract media attention and “likes” from “fans.” If many “fans” enjoy insulting people, it pays politically to please them.
I am of the view that enacting a national security law according to Article 23 in Hong Kong requires the input of all legislators, particularly that of the opposition camp. We all need to work together to see to it that Article 23 legislation is done in a way that can materially benefit national security and territorial integrity, and at the same time is compatible with Hong Kong people’s freedoms within the law. After all, the central government, by stating that Hong Kong “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 organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies”, has indicated its trust in Hong Kong legislators’ professionalism and commitment to complete the legislative work. I am hopeful that Hong Kong’s legislators will not let the central government down.

The author is a senior research fellow at Pan Sutong Shanghai-Hong Kong Economic Policy Research Institute, Lingnan University.

The views do not necessarily reflect those of China Daily.

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