Next Hong Kong chief executive must implement Article 23 national security laws without delay

by Grenville Cross / 1 February 2017/ SCMP

In 2012, when former president Hu Jintao (胡錦濤) visited Hong Kong, he said: “It is essential to put into practice each and every provision of the Basic Law.”

However, almost five years on, and nearly two decades after reunification, Hong Kong has still not, as the Basic Law requires, implemented the national security laws. This is a significant failure, with potentially serious consequences.

The central authorities have placed great faith in Hong Kong by allowing it, in Article 23’s words, to “enact laws on its own” for national security. In most places, national security legislation is dealt with through national parliaments, and not left to regional legislatures.

Of course, China could simply have extended its own national security law to Hong Kong but trusted the city to deal with this within a reasonable time. Its faith, unfortunately, has been misplaced.

There is, however, not a complete vacuum. The old colonial laws on treason, sedition and theft of state secrets could still, at a stretch, be deployed, while the Societies Ordinance enables the secretary for security to control the activities of foreign political organisations. But Hong Kong also needs its own tailor-made laws to cover secession and subversion, which are lacking.

While this might suit some people, it makes a mockery of Hong Kong’s constitutional obligations to the rest of China.

Although Macau, China’s other special administrative region, was ­reunified with the mainland in ­December 1999, as many as 30 months after Hong Kong, it nonetheless managed to enact its own national security legislation by 2009, and the sky has not fallen in.

While Hong Kong’s first secretary for justice, Elsie Leung Oi-sie, valiantly supported the ill-fated attempts by Tung Chee-hwa’s government to turn Article 23 into reality in 2002-03, her two successors, Wong Yan-lung and Rimsky Yuen Kwok-keung, simply sat on their hands. Beijing’s patience must by now have worn very thin, and who can blame them.

In 2015, China’s legislature adopted a comprehensive national security law, far tougher than anything envisaged by Article 23. Its ­Article 40 specifically requires Hong Kong and Macau to fulfil their responsibilities “for the preservation of national security”. While Macau has already acted and need not worry, alarm bells should by now be ringing loudly here.

Although the mainland’s new security law does not apply to Hong Kong, this could easily change. If Hong Kong continues to shirk its duty under Article 23, there must be a real possibility that the hardliners in the Standing Committee of the National People’s Congress will gain the upper hand, and impose it on Hong Kong.

This is entirely feasible, as the Basic Law’s Article 18(3) entitles the Standing Committee to add laws to the list of national laws applicable to Hong Kong in Annex III. Read more…

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