Finally, Hong Kong can put Article 23 to bed

Despite this, there is still a persistent strain of thought in the West that the Article 23 legislation is the latest step in Beijing’s efforts to make the Hong Kong legal system more like that of the mainland. This is demonstrably not the case, but I doubt this will change the minds of any critics.

We are off to a good start, but we can do even better. Article 23 requires the city government to legislate to protect national security in seven areas: treason, secession, sedition, subversion against the central government, theft of state secrets, activities of foreign political bodies and ties with such bodies. The administration is working on the basis that the national security law dealt with secession and subversion, so we only need to tackle the other five. I do not believe this is in our best long-term interests.

02:13

Beijing’s passage of national security law for Hong Kong draws international criticism

One hundred years from now, when historians look back at the early years of post-handover Hong Kong, they will report we were slow to fulfil our duty. There is nothing we can do about that now. But if they can also report that, when we finally got around to it, we only did five-sevenths of the job, then that stain on our record will be there in perpetuity. It would be much better to cover all seven areas in the new law.

Who knows, if we did a good enough job, the National People’s Congress may even feel confident enough to repeal the national security law.

There are two aspects of the 2020 national security law that do not fit comfortably in the common law tradition, and we should take the opportunity to tidy them up.

For one, there is no need to bring across to our own ordinance the presumption against bail in Article 42. One reason to refuse bail is the relative seriousness of the charge. A charge under our new law will by definition be serious, and magistrates will no doubt give due consideration to this factor in exercising their judgment on bail. There is no need to tell them how to do their job.

The second aspect is the designation of judges to deal with national security cases, covered in Article 44. I accept that, constitutionally, it is proper for Lee to promulgate that list; he is, after all, head of the entire government. But the optics are bad. It enables critics to say the chief executive is putting people on trial in front of hand-picked judges. We lose the argument because the truth is too complicated to explain. Better to leave promulgation to the chief justice.

The government should listen to the people on national security laws

The next stage in the process is drafting the new Safeguarding National Security Ordinance, after taking into account all the comments received during the consultation. This will require great care because there are so many tricky areas. For example, the Hong Kong administration is notorious for overgrading documents. Routine papers can be classified as confidential or even secret. Where will we draw the line on what constitutes a state secret?

Then there is the issue of replacing the word “enemy” with “external forces”. Unless we are very careful, we could find the Scouts in trouble because of their international links, or other worthy organisations such as Greenpeace or animal protection societies. Where will churches and international aid agencies fit in?

Surely an element of hostility towards China would have to be present for an action to become an offence. Moreover, the burden of proof must be on the prosecution.

The paper alludes to precedents elsewhere for granting officials the power to keep someone locked up without judicial scrutiny. Do we really want to follow the UK and Singapore down this rabbit hole? We should also take the opportunity to set a time limit for extending bail under Section 52 of the Police Force Ordinance.

All these aspects require careful work and thorough scrutiny. Although I won’t be popular for saying so, I think it would be better if we next had a white bill before the blue one to get the details right. This would take time, which would probably push enactment into the next Legislative Council session rather than before the summer recess.

One possible downside of having a legislature filled with patriots could be skimping on the in-depth scrutiny. But, as my grandmother used to say: “If a thing is worth doing, it’s worth doing well.”

Mike Rowse is an independent commentator

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