The double-edged sword of political reforms and Article 23

August 30, 2018 08:30
Chief Executive Carrie Lam has repeatedly said she won’t consider either democratic reforms or Article 23 until Hong Kong’s political atmosphere is less divisive. Photo: CNSA

No one knows which came first, the chicken or the egg, but which should come first – political reforms or Article 23 national security legislation? Beijing loyalists have joined forces to demand the speedy enactment of Article 23 after the Foreign Correspondents’ Club hosted a lunch speech by independence activist Andy Chan Ho-tin. The speech and the government’s intention to ban Chan’s National Party has brought Article 23 back into the political spotlight.

But the opposition insists there’s no urgent need to resurrect Article 23 solely because Chan made a non-violent speech on Hong Kong independence. It is sticking to its guns political reforms that guarantee genuine democracy must come first. That puts us in a chicken and egg situation.

Chief Executive Carrie Lam Cheng Yuet-ngor has repeatedly said she won’t consider either democratic reforms or Article 23 until Hong Kong’s political atmosphere is less divisive. The establishment has enough votes to ram through Article 23 – which needs just a simple Legco majority to pass – but it is by no means certain all establishment legislators will support it. Even if they do, the opposition will put up a ferocious fight, further souring the political atmosphere.

But with Beijing fearing that foreign forces could use Hong Kong to threaten national security now that US-China rivalry is spiraling, Lam is under great pressure to legislate Article 23 sooner rather than later. Mainland leaders and local loyalists have sent constant reminders the Basic Law requires Hong Kong to legislate Article 23.

So what happens next? Beijing has made crystal clear the only political reform framework on offer is the 2014 version which the opposition voted down as fake democracy. The opposition has made equally clear it will only accept its own definition of genuine democracy. I can’t see Beijing allowing the opposition’s version of democracy because it could produce legislators and chief executives the central government doesn’t trust. If Beijing doesn’t trust genuine democracy, how could it allow reforms to come before Article 23, which is intended to protect national security?

What further complicates matters is the proliferation of social media in the 15 years since the government withdrew its 2003 version of Article 23 after half a million protesters took to the streets. Any new version of national security legislation will have to take the digital age into account, meaning the legislation will have to be far tougher than the one in 2003.

Most legal experts agree Andy Chan could not have been prosecuted under the 2003 legislation, which made clear only violent seditious activity is a crime. But now that we have social media, would it be a crime for netizens to peacefully discuss Hong Kong independence online? If yes, does that mean Article 23 will have to censor non-violent free speech on the internet?

Hong Kong and Macau Affairs director Zhang Xiaoming asserted Chan had broken existing laws with his non-violent FCC speech even though the speech did not incite others to commit violent acts. Beijing loyalist Maria Tam Wai-chu disputed Zhang’s assertion, saying Chan’s FCC speech had not crossed any free speech boundaries, such as inciting violence, to make it illegal. But other loyalists, including former chief executive Leung Chun-ying, made clear free speech has limits.

Zhang’s position, combined with that of local loyalists, sends a strong message Beijing will want future Article 23 legislation to criminalize any talk of independence even if such talk does not incite others to commit violent acts. I can’t see how the opposition would accept a law that criminalizes non-violent speech or bans people from peacefully advocating independence in places such as the FCC.

Former Legislative Council president Jasper Tsang Yok-sing has proposed breaking the stalemate with a grand committee of people from all sides to oversee dual public consultations on political reforms and Article 23. This sounds like a pipe dream to me. Having public consultations on two of Hong Kong’s most divisive political issues at the same time would unavoidably merge two very different issues into one debate, causing political confusion.

We are already seeing how near impossible it is to reach public consensus on the issue of finding land for housing, even though it is a livelihood issue. Given the huge political divide on both Article 23 and democratic reforms, it would take a miracle to get public consensus on each issue, let alone getting a consensus on both issues at the same time.

This is not in any way meant to disparage Tsang’s proposal. I have great respect for him. All reasonable ideas are worth considering. It’s just that our political atmosphere is so toxic, and getting more so as Beijing tightens its grip on us, that getting public consensus on two contentious issues may be asking too much of the public.

It can be argued the political atmosphere is far less toxic than it was during Leung Chun-ying’s time as chief executive. That’s only because Lam has chosen to build bridges with the opposition by putting divisive politics aside to focus on livelihood issues. But confrontational politics will return the minute she revives Article 23 and political reforms for the simple reason neither Beijing nor the opposition will budge on either issue.

Even if Tsang’s proposal for a dual public consultation flies and produces a consensus, we’re back to chicken and egg – which one should Legco legislate first? Will there be enough mutual trust for one side to give ground?

Lam is right to set aside both issues to focus instead on the pressing issue of housing, which is the top priority of Hong Kong people. Building mutual trust between the opposition and Beijing is easier said than done, given the huge ideological differences between the two sides.

Mutual trust actually took a step backwards with the dual revelations Peking University had disinvited the Bar Association chairman and two members to discuss common law, and security agents had detained two Demosistō members on the mainland.

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A Hong Kong-born American citizen who has worked for many years as a journalist in Hong Kong, the USA and London.