Published: 01:14, March 25, 2020 | Updated: 05:55, June 6, 2023
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Article 23: Cometh the threat, cometh the law
By Grenville Cross

Although the COVID-19 crisis has distracted attention, the threat to Hong Kong by subversive forces remains as real as ever. Although they have scaled back their operations, they are still highly dangerous, as their sporadic violence demonstrates. As the police commissioner, Chris Tang Ping-keung, appreciates, they are simply biding their time, and using the pause to renew themselves, and to plan yet further outrages.

On Saturday, for example, a gang of recreational rioters, starved of the violence they relish, turned up in Yuen Long, looking for trouble. Clad in black, these sinister thugs set about blocking roads, setting fires and battling with police officers. Once again, they displayed their true objectives, waving Hong Kong independence flags and shouting “Liberate Hong Kong”, and “Hong Kong independence is the only way out”.

Street violence, of course, is only the tip of the iceberg, and the police invariably contain it without great difficulty. The subversives are, therefore, now ratcheting up their terrorist capability, imagining that greater atrocities will advance their cause. In 2019, the police handled 187 explosives cases, a 60 percent increase over 2018. Since June, the police have cracked 15 significant bomb cases, with approximately 2.6 tons of explosives and chemicals seized in early March alone, along with three homemade bombs. These were believed to be linked to three recent bomb incidents, at Caritas Medical Centre in Cheung Sha Wan, at Shenzhen Bay Control Point and at Lo Wu Station, where an explosives device on a train was ignited.

Street violence, of course, is only the tip of the iceberg, and the police invariably contain it without great difficulty. The subversives are, therefore, now ratcheting up their terrorist capability, imagining that greater atrocities will advance their cause

Although, evidence permitting, it may be possible to prosecute the culprits for plotting terrorist-related bombings, under section 11B of the United Nations (Anti-Terrorism Measures) Ordinance (Cap 575), the predicate offences of subversion and attempting to split the country must also be prosecutable, as the National People’s Congress obviously intended when it inserted Article 23 into the Basic Law. Given all the warning signs, it is vital that law enforcers have all the tools they need to protect Hong Kong before large-scale subversive operations resume.

What is urgently required, therefore, is a subversion law, which criminalizes conduct aimed at intimidating or overthrowing the Central People’s Government (CPG), or disestablishing the State, by levying war, using force, or other serious criminal means. Also necessary is a secession law, proscribing activities designed to withdraw Hong Kong from its sovereignty, or resisting the CPG in its exercise of sovereignty over Hong Kong, by force, violence or other serious criminal means. 

Every country, of course, has its own laws safeguarding national security, and the duty of citizens to protect the security of their nation is universally acknowledged. In other places, national security legislation is enacted by state parliaments, not regional legislatures, and the central authorities could simply have extended China’s State Security Law to Hong Kong. However, in a remarkable show of faith, they entrusted Hong Kong, under Art 23, to “enact laws on its own” for national security. Although there is no time frame, this was clearly intended to occur within a reasonable period, and, for example, Macao’s legislature enacted its own version of Art 23 within less than 10 years of its own reunification.

Hong Kong, however, almost 23 years after reunification, has still not implemented Art 23. Although, in February 2003, the then-government introduced the National Security (Legislative Provisions) Bill 2003 into the Legislative Council, it was abandoned in September 2003, following street protests, foreign criticism and a failure of will. Ever since, anti-China forces, both inside Hong Kong and in other places, have taken full advantage of the vacuum. Open war has been waged on society, yet those responsible are still not fully prosecutable.   

Indeed, when former president Hu Jintao visited Hong Kong on July 1, 2012, he said “it is essential to put into practice each and every provision of the Basic Law”. Those wise words, however, fell on deaf ears, with consequences which have been fully exploited by foreign forces and their local proxies. Fast-forward to 2020, and, on Jan 20, Luo Huining, director of the CPG’s Liaison Office, said “if national security systems and mechanisms are absent for a long time in the city, external forces will be able to carry out infiltration and sabotage activities”.

However, although the government must no longer prevaricate, it does not have to completely reinvent the wheel. The pre-1997 laws on treason, sedition and theft of state secrets can still, duly modernized, be deployed. Under the Societies Ordinance (Cap 151), moreover, the secretary for security is able to control the activities of foreign political organizations, although it is also necessary to criminalize organizing or supporting the activities of any organization proscribed on national security grounds, including organizations affiliated with mainland bodies which have been banned by the CPG for security reasons.

However, the peaceful discussion of political issues, and the exchange of ideas, need not be criminalized. Indeed, by virtue of the Basic Law’s Art 39, the International Covenant on Civil and Political Rights continues to apply in Hong Kong, and this, within reasonable bounds, guarantees freedom of expression and the right to hold opinions without interference. As the then-secretary for justice, Elsie Leung Oi-sie, explained in 2002, provided that force, violence or serious unlawful means are not used to try to effect change, “we should not use criminal sanction against people from discussing, expressing opinions and even to strive to achieve such an objective”.

The Macao National Security Law is now over 10 years old, and the sky has not fallen in. On the contrary, when Macao’s incoming chief executive, Ho Iat-seng, was interviewed on Sept 11, he said “with such legislation, we can prevent interference by foreign influences. If they dare to intervene, we will make use of our law to safeguard the country. We won’t allow foreign influences to have a hand in Macao’s affairs. Macao cannot afford to fall into chaos”. Quite clearly, given the recent mayhem, Ho’s words also fit Hong Kong’s situation perfectly.    

Since 1997, the central authorities have done much to uphold the Basic Law, thereby ensuring the success of “one country, two systems”. The Basic Law, however, is a two-way street, and Hong Kong must live up to its own responsibilities. Of course, anti-China forces will mobilize as soon as the legislation is announced, but the government must hold firm this time, and discharge its constitutional obligations to the motherland. If, however, Art 23 is not implemented, it will not only encourage the subversives yet further, but it will also diminish the prospects of a “through-train” in 2047, when the Basic Law’s “50 years unchanged” proviso is due to expire (Art 5).

Hong Kong, therefore, must now act decisively, to safeguard both its short- and long-term future, and to show the nation that, when push comes to shove, it can still be trusted.     

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of Hong Kong, China.

The views do not necessarily reflect those of China Daily.