Does Hong Kong have the right not to enact article 23 laws?

Frank Ching March 27, 2024 22:31

Now that the debate over article 23 is over, with the Safeguarding National Security Ordinance having come into effect on March 23, it may be appropriate to look at some of the less discussed issues raised in the government’s consultation document.

Chief Executive John Lee said in the Legislative Council after it unanimously voted in favor of the bill, “Today, the constitutional responsibility and historic mission of legislating for Article 23 of the Basic Law have finally been fulfilled.”

But is that true? Article 23 of the Basic Law specifically called on Hong Kong to enact laws to prohibit “secession” and “subversion against the Central People’s Government” as well as other offences. But the law that just came into effect contains no provisions against these two crimes. Why?

In its consultation document, the government referred to the mainland drafted Hong Kong National Security Law, which was imposed on the HKSAR in 2020, and said:

“Considering that the HKNSL has already created offences and provided for two types of acts, namely secession and subversion, we recommend that it is not necessary for the HKSAR to legislate on the offences of secession and subversion again.”

So this was the government’s recommendation. This suggests that the government thought it had a choice, to enact laws on these two offences or not to do so. But the Basic Law did not offer a choice. It just said: do these things.

Moreover, we are told by the government that the NSL did not change the Basic Law. Thus, “the selection of the Chief Executive by universal suffrage” remains the ultimate aim, as stated in article 45, as well as the ultimate aim of “the election of all the members of the Legislative Council by universal suffrage,” as stated in article 68.

This being the case, why does the Hong Kong government believe that article 23 has changed, and that it can choose not to enact laws regarding certain offences?

The consultation document cites article 7 of the NSL to justify the haste with which the administration dealt with the article 23 bill. But article 7 calls for more than speed. It calls on Hong Kong to complete legislation for safeguarding national security “as stipulated in the Basic Law.” And we all know what article 23 of the Basic Law stipulates.

By putting that recommendation in the consultation document, the government was asking the public for its views. But the public has no authority to decide what article 23 of the Basic Law means in the aftermath of the 2020 HKNSL. The power to interpret the Basic Law is vested in the standing committee of the National People's Congress. This is stipulated in article 159 of the Basic Law.
By deciding on its own not to include certain offences mentioned in article 23, it appears, the government has interpreted the Basic Law, exercising a power that the Hong Kong government doesn't have.

Did the central authorities, perhaps, give Hong Kong that leeway, to decide what article 23 literally calls for? If so, we certainly have not been told. Besides, no central authority has the power to interpret the Basic Law, other than the standing committee of the National People’s Congress. And the NPCSC has not held any meeting with this issue on its agenda.

Unless the Hong Kong authorities explain to the public why they had the authority to “recommend,” that is, to choose not to do something that article 23 specifies, there will be a nagging feeling that the government has not discharged its full constitutional responsibility.

But article 23 did not specify a time limit. If the government realizes that its mission has not been fully accomplished, it may still be able to discharge its responsibility during the remainder of its term, or during next term, or perhaps by the next administration. But it cannot leave the issue dangling.

Evidently, the Basic Law as originally drafted envisaged the concept of Hong Kong people administering Hong Kong as very much including the enactment of national security laws. Hong Kong should not stop short, using the excuse that someone else has already done it.

Besides, legislating in Hong Kong for Hong Kong is different from legislating in the mainland for the city. That surely is why the drafters of the Basic Law decided in the 1980s that Hong Kong should, “on its own,” enact designated laws on national security.

This was understood by those who attempted to enact article 23 legislation two decades ago. The consultation document at that time acknowledged that “the manner in which the state’s sovereignty and security are protected in the Mainland and in the HKSAR may legitimately differ.” It added: “Indeed, this has to be the case given the different situations, including the respective legal framework of the Mainland and the HKSAR.”

In addition, there is value for Hong Kong, a proudly capitalist society as well as an international financial center with a cosmopolitan population with guaranteed rights and freedoms, to draft laws from its very different perspective. China clearly saw value in getting the SAR’s perspective in the 1980’s. The city is still unique and able to make its contribution, especially when it has such a constitutional responsibility.

Frank Ching

Frank Ching opened The Wall Street Journal’s Bureau in China in 1979. He is now a Hong Kong-based writer on Chinese affairs.