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Published: 01:32, July 28, 2021 | Updated: 10:13, July 28, 2021
HK can borrow from foreign security laws to draft robust Article 23
By Tony Kwok
Published:01:32, July 28, 2021 Updated:10:13, July 28, 2021 By Tony Kwok

An old Chinese proverb best explains US sanctions against seven deputy directors of the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region: “Humiliation soon turns to rage to cover one’s shame.” 

The US government had invested lots of resources in building up an espionage base in Hong Kong, and made tremendous efforts to recruit their anti-China agents here and provided them with training and resources, hoping that they could successfully mount the 2019 riots to seize control over Hong Kong to hurt the central government. They were almost successful in bringing the city to its knees, but the central government saved the day with the introduction of the National Security Law for Hong Kong, and together with its effective implementation by the disciplined Hong Kong Police Force, the subversive American network was rendered impotent with the mass arrests of many implicated violent protesters, opposition politicians and activists. Many US consulate staff members quickly deserted Hong Kong, and their quarters were sold. Hong Kong soon returned to order and stability. The US sanctions were indeed truly a manifestation of their “humiliation turning to rage to cover their shame”! But they only succeeded in exposing the true anti-democratic colors of the US government and in unifying the Chinese people against foreign interference.

As Xia Baolong, head of the Hong Kong and Macao Affairs Office of the State Council, pointed out in his address at a high-level symposium on July 16 marking the first anniversary of the enactment of the law, the law has “filled a long-existing vacuum with regard to safeguarding national security in Hong Kong and crushed the ‘color revolution’ plot of the Hong Kong version.” As a spokesperson for the office said, the US sanctions will only expedite a doomsday for their “proxies in the city”!

Xia also said that the HKSAR should unswervingly fulfill its constitutional duty to safeguard national security and spare no effort to build an “iron wall” for national security. The underlying message is that the HKSAR government should promptly promulgate a local NSL to fulfill its constitutional duty as specified in Article 23 of the Basic Law. Indeed, introducing Article 23 would signal to all foreign forces and local subversive elements that any attempt to disrupt law and order here will be robustly resisted, and the culprits severely punished. It would plug all remaining loopholes that previously facilitated US interference through their local proxies in Hong Kong.

Given the US’ and some of its allies’ hostile attitude toward Hong Kong, we must ensure the local NSL should be able to deal with all possible eventualities concerning national security. For a start, it should include all the tough but essential provisions of comparable legislation in leading democracies

When the first local NSL was being drafted in 2003, the intention was that it should be mild, uncontroversial and adopt a minimalist approach covering only the bare essentials of national security. But things have changed, and we now have a far more confrontational culture that plays into the hands of a perennially combative political opposition. Given the US’ and some of its allies’ hostile attitude toward Hong Kong, we must ensure the local NSL should be able to deal with all possible eventualities concerning national security. For a start, it should include all the tough but essential provisions of comparable legislation in leading democracies. It would then be impossible for the opposition to criticize it without sounding hypocritical!

There is also a strong case for drafting a tougher local NSL, as recent events have shown that there are local “lone wolves” lying in wait and dormant terrorist groups in our midst biding their time before they pounce. Their potential threat to public safety cannot be overemphasized, and our legislative and law enforcement regimes must take that into account.

On the legislative side, we may take a leaf from two American national security laws. Executive Order 13224, signed by then-president George W. Bush on Sept 23, 2001, following the devastating twin towers attacks, authorizes the seizure of assets of organizations who assist, sponsor, or provide material or financial support, or are otherwise associated with terrorists. Next is the USA Patriot Act, which permits the indefinite detention of immigrants; authorizes law enforcement agencies to search a home or business without the owner’s knowledge; and allows the FBI to search telephone, email, and financial records without a court order.

Australia has at least 13 major national security laws, covering treason, treachery, sabotage; piracy; espionage, terrorism, terrorist financing; hostage taking; interference with ships or aviation; foreign interference in domestic politics in Australia; and foreign incursions into Australia. The proposed local NSL should cover all these areas, and not be limited to treason, sedition and theft of state secrets as constituting Article 23. 

Under the Australian foreign interference act, passed in 2018, it is illegal for a person to knowingly engage in covert conduct or deception on behalf of a foreign principal with the intention of influencing an Australian political process, exercise of a vote, or prejudicing national security. The maximum penalty is 20 years’ imprisonment. Such a provision is most appropriate to combat US interference in Hong Kong.

We can also take reference from the recent UK proposed amendment to the Official Secrets Act to make it a mandatory offense for unauthorized disclosure of government secrets, which removes the defense for journalists on public interest grounds.

In Singapore, the Internal Security Act permits the president of Singapore, on national security grounds, to prohibit certain publications and to proclaim certain zones as “security areas”. The president is also able, under the ISA, to order renewable detention without trial for up to two years. Singapore also has tough media laws to deal with any publication or speech that is seditious, defamatory or injurious to religious sensitivities. In 2019, Singapore introduced a robust anti-fake-news law; so should Hong Kong.

But the most exciting development in national security legislation took place in Switzerland, where a new anti-terrorism law that received majority support in a referendum includes allowing the police to carry out preventive detention before terrorist attacks actually take place. Under the new Federal Act on Police Measures to Combat Terrorism, the police are allowed to put potential suspects under close surveillance without prior judicial consent, including restrictions such as an electronic ankle bracelet with GPS locator, no contact with the outside world, and even house arrest if that is deemed necessary.

The local NSL can include the above provisions and should also address the challenges of inflammatory narratives posted by anti-China extremists on social media, including those that romanticize terrorism.

I wonder if anyone knows that the National Endowment for Democracy, known to be an arm of the US Central Intelligence Agency and banned in Hong Kong in 2019 because of its despicable role in supporting the riots, is offering US$150,000 for reports on human rights violations in Cuba, at a time when Cuba is wracked by public protests. And the US Senate recently set aside US$300 million to encourage journalists around the world to produce “negative articles related to China’s Belt and Road Initiative”, clearly an incentive for unscrupulous journalists to fabricate negative reports about what is essentially an international development program to expedite development with local partners.

As a matter of fact, we may already be suffering under such devious American subversive interference with the help of local proxies. Given the fake news and distorted commentaries that flooded the local media at the height of the insurrection in 2019, I would not be surprised if some of our local academics and media commentators have been receiving secret funding from the West to perform just such dirty work and being rewarded for it. It should now be made a criminal offense for a reporter or academic to receive foreign funding to demonize China, including Hong Kong.

At the same time, the local NSL should lay down clear requirements for the education sector and media to promote public education on patriotism and national security. It can make it a statutory requirement for all teachers and registered media reporters to have to take an oath of allegiance to the Basic Law.

The law should also tighten the rule for public protests, drawing from the strict condition imposed by the bill currently in the British Parliament titled “Police, Crime, Sentencing and Courts Bill”.

The right of silence in police interviews has long been abolished in many Western common law jurisdictions, as well as Singapore, because of its injurious effect in the pursuit of justice through seeking the truth by law enforcement officers. The right of silence is definitely nonexistent in the US military detention center in Guantanamo Bay! Such a right of silence for national security cases should be abolished. If the suspects refuse to answer questions during police interviews, it would be valid for the prosecution counsel to cross-examine why they had failed to come up with the defense at that time, and for the court to draw inference from their silence. Defendants on trial for national security offenses can also be compelled to go to the box and be subject to cross-examination by the judge and prosecution counsel.

All in all, the local NSL should be able to incapacitate substantially all those suspected subversive organizations in Hong Kong, such as the Falun Gong, the Hong Kong Bar Association, the Hong Kong Journalists Association, and the Hong Kong Professional Teachers’ Union.

Last but not least, and in response to Western sanctions, the local NSL should make it illegal for any persons or companies in Hong Kong to exercise any foreign sanctions on Hong Kong.

The current administration has suggested waiting for the coming new chief executive term to promulgate the Article 23 legislation. This is likely to cause a delay of at least two years. But can Hong Kong afford such a delay? I would suggest that the draft legislation should be made available for consideration at the new Legislative Council in December, and be passed into law in the first quarter of 2022.

There is no need to worry whether the local NSL might face strong public opposition as happened in 2003. Hong Kong people have learned from the chaos and destruction of the 2019 riots and have wisely expressed their unequivocal support for the NSL in the first 12 months of its implementation. According to a survey conducted in late June, 82.6 percent of the 1,509 interviewees said the city’s public order has improved since the law took effect, while 71.9 percent said the law boosted their confidence in the “one country, two systems” policy.

Indeed, the public appreciates that the NSL will serve as a solid legal foundation to protect our prosperity and stability, and only then can our existing system survive beyond 2047, when the SAR’s high degree of autonomy will come up for review.

The author is an adjunct professor of HKU Space, a council member of the Chinese Association of Hong Kong and Macao Studies, and a former deputy commissioner of the Independent Commission Against Corruption.

The views do not necessarily reflect those of China Daily. 

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