2023-06-30 02:45:31
6 hours ago
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Article 23 has always been a political “hot potato” in Hong Kong (file photo).
The “Hong Kong National Security Law” has been implemented for three years. This law is officially declared to be “a magic needle for the sea” and “only for a small group of people”. As of now, the conviction rate is 100%, and it is accused of causing a chilling effect in Hong Kong society.
Beijing and the Hong Kong government stated that Hong Kong has “turned from chaos to governance, from governance to prosperity”, but still must beware of “soft confrontation” and national security risks. On the eve of July 1st, Hong Kong Chief Executive Lee Ka-chao made a clear announcement that Article 23 of the “Basic Law” related to national security has a timetable and “must be enacted this year or next year at the latest.”
The authorities have not announced the content of the draft, but analysis believes that Article 23 is “more symbolic than practical” compared with the National Security Law, and it also marks Beijing’s further tightening of ideological work on Hong Kong.
What is “Article 23”?
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In 2003, hundreds of thousands of Hong Kong citizens took to the streets to protest against Article 23 legislation and demanded that the then Chief Executive Tung Chee-hwa step down (file photo).
Article 23 of Hong Kong’s “Basic Law” is an article related to national security. It stipulates that the SAR government should enact legislation to prohibit seven types of acts that endanger national security. However, this has not been realized since the transfer of sovereignty in 1997.
The “seven deadly crimes” in Article 23 include: treason, secession, sedition, subversion of the Central People’s Government, theft of state secrets, foreign political organizations or groups conducting political activities in Hong Kong, and Hong Kong political organizations or groups collaborating with foreign political organizations or groups.
In 2002, Hong Kong’s first chief executive, Tung Chee-hwa, launched local legislation, but the consultation period was insufficient, and the wording of the bill was accused of being vague and harsh. The public worried about the violation of freedom of speech and human rights. Later, the establishment Liberal Party, which represented the interests of the business community, defected, and the government failed to obtain enough votes in the Legislative Council, and finally withdrew the draft.
Since then, Article 23 has become a “hot potato” in politics, and the four successive chief executives failed to fulfill this “constitutional responsibility”.
However, Professor Chen Wenmin, the former dean of the Faculty of Law of the University of Hong Kong, once publicly refuted the claim that the “constitutional responsibility” was not fulfilled. The law has always existed in Hong Kong’s existing legislation, it’s just scattered in different clauses.
He pointed out that on July 1, 1997, the Provisional Legislative Council passed the “Hong Kong Reunification Ordinance”, which changed the original protection of “Emperor”, “United Kingdom” and other places in Hong Kong laws to “the Central People’s Government of the People’s Republic of China”.
The current “Criminal Offenses Ordinance”, “Official Secrets Ordinance”, and “Societies Ordinance” all have crimes such as sedition, rebellion, and espionage, which already cover 23 requirements.
What is the difference between Article 23 and the crimes in the National Security Law?
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The Li Zhiying case is one of the landmark cases of Hong Kong’s National Security Law, and details such as its terms of use and procedural rules have always attracted attention (file photo).
“The (Hong Kong) National Security Law is entirely aimed at the crimes and situations that occurred in 2019, not a comprehensive national security law, nor does it include all the seven deadly crimes in Article 23.” Tang Jiahua, a member of the Hong Kong Executive Council and senior barrister, told the BBC Chinese said.
In 2019, the “anti-extradition” movement broke out in Hong Kong due to the revision of the “Fugitive Offenders Ordinance”. Beijing regarded it as “anti-China chaos in Hong Kong” and “color revolution”. In order to split the country, subvert the state power, organize and implement terrorist activities, and interfere with foreign forces, the first two partially overlap with Article 23.
In other words, the “Hong Kong National Security Law” does not cover the other five crimes in Article 23, namely treason, sedition, theft of state secrets, foreign political groups conducting political activities in Hong Kong, and local political groups contacting foreign political organizations.
Song Xiaozhuang, director of the National Association for Hong Kong and Macau Studies, wrote in the “Bauhinia” magazine a month ago that the 23 legislation does not need to repeat the two crimes already covered by the “National Security Law”, but can focus on the remaining five crimes.
It is worth noting that the definition of “subversion” in Article 23 and the National Security Law is not the same. The former is aimed at the “Central People’s Government”, while the latter is aimed at “state power”. The scope of the National Security Law is broader.
With the “National Security Law”, is Article 23 still urgent?
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The June 4th candlelight vigil, which has a history of more than 30 years, cannot be held after the implementation of the “National Security Law”. The picture shows Hong Kong police stationed in Victoria Park on June 4, 2022 (file photo).
Hong Kong’s current laws already contain the requirements of Article 23 to a certain extent, but some laws are accused of being outdated.
For example, the Official Secrets Ordinance covering the crime of espionage is a localization of the legislation enacted in the United Kingdom in 1919, while the crime of treason under the Crimes Ordinance still retains the words “Her Majesty the Queen”.
Tang Jiahua, a member of the guild, said in an interview with the BBC in Chinese that these laws passed by the British Hong Kong government have been passed for more than 30 or even 50 years. inconsistent, so there is an urgent need to modernize these laws to meet the requirements of Article 23.”
Professor Chen Wenmin, the former dean of the Faculty of Law of the University of Hong Kong, once pointed out that the existing laws need to be reformed and keep pace with the times, and they can be referred to the Law Reform Commission for discussion. There is no need to demand the legislation of Article 23 for political convenience.
He also said that the current law is not only insufficient, but too strict. For example, in the past cases, three people planted bombs, which has been regarded as launching a war against the Emperor (the Chinese government), or even being implicated if they did not report the knowledge. These are all against Today’s Basic Law and common law guarantee human rights.
Dr. Li Enhao, a visiting researcher at King’s College of Law, University of London, also told BBC Chinese that it is necessary to update outdated laws, “The question is, do we want to update to be more stringent and violate human rights, or is it more in line with human rights protection? “
Lai pointed out that the current “National Security Law” is already a legal weapon to control society, whether it has far-reaching influence and has achieved a great deterrent effect. He questioned the urgency of enacting Article 23.
“Is it the urgency of the objective reality, or the urgency of political propaganda and slogans? From the government’s perspective, it is more beneficial for the government to enforce tough governance by constantly enacting new national security laws and further extending the power of the national security system in Hong Kong society. 」
23 “Political tasks” are imperative?
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The analysis pointed out that national security has become the core thought of Xi Jinping, adding a political symbolic meaning to Hong Kong’s Article 23 legislation
Hong Kong Chief Executive Lee Ka-chao has repeatedly stated in recent days that the legislation of Article 23 is a priority, emphasizing that “the sooner the better” and “it’s not a trade-off”.
Current affairs commentator Lin Heli pointed out to BBC Chinese that the current “National Security Law” is sufficient to maintain the “stability” Beijing needs. “Article 23 may be mainly in form, and the symbolic meaning is greater than the actual effect.” The legislation is to further establish “Hong Kong” Second return”.
Chen Jingxiang, a senior media person, previously wrote an analysis in Ming Pao that the previous Hong Kong governments were “unmoved” by Article 23, but this time the legislation is bound to be completed during Li Jiachao’s first term, because Hong Kong is now under the direct control of the Party Central Committee. leadership, and maintaining national security is the core idea of the Xi Jinping era.
He pointed out that after Xi Jinping came to power in 2012, he established the National Security Council and put forward the “overall national security concept” for the first time. The 20th National Congress even stated that “national security is the foundation of national rejuvenation.” In this context, Hong Kong’s Article 23 legislation is no longer as simple as the “constitutional responsibility” that was described in the early days of the handover, but is Zhongnanhai’s primary concern and major political task.
He cited the precedent of Macau. Even though the local government enacted a relatively “moderate” version of the national security law in the early years, after more than ten years, it has to catch up with Beijing’s political situation and amend the provisions more stringently. China”, there is no “two systems”, and the relevant laws must be in line with those of mainland China.
Zhong Jianhua, a Hong Kong social policy and public administration scholar who has immigrated to the UK, said that it has been 26 years since the handover of Hong Kong’s sovereignty. The constitutional reforms in Articles 45 and 68, that is, the methods for selecting the chief executive and the Legislative Council, aim at universal suffrage.
“After the unsuccessful legislation in 2003, the general understanding is that we have to wait until the third chief executive election method is confirmed in 2007, and then push for a more reasonable election before enacting Article 23 legislation. This (implementing universal suffrage) is actually a constitutional responsibility. Now Beijing In this current situation, no one can stop him from castrating the Basic Law and taking it out of context. The SAR government seems to want to use this matter (Article 23) to show its loyalty to Beijing.”
Does Article 23 conflict with the National Security Law?
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The National Security Law has an overriding status and is accused of violating the human rights and freedoms guaranteed by the Basic Law (file photo).
Article 23 is local legislation, and the National Security Law is a national law implemented in Hong Kong. Secretary for Security Tang Bingqiang described earlier that the two “complement each other”.
In 2020, the National People’s Congress of China passed the “Decision on Establishing and Improving the Legal System and Enforcement Mechanism for Safeguarding National Security in the Hong Kong Special Administrative Region (Draft)” with 2,878 votes in favor, 1 against, and 6 abstentions. Chairman Wang Chen mentioned at the time that Article 23 has been seriously stigmatized and demonized by people with ulterior motives, and it is difficult to pass it in the Hong Kong Legislative Council. Therefore, it is necessary to establish a legal system to maintain national security “at the national level”.
Beijing directly incorporated the National Security Law into Annex III of Hong Kong’s “Basic Law” and promulgated it for implementation in Hong Kong. This was seen by the outside world as bypassing Hong Kong’s local legislative procedures.
The official explained that although Article 23 of the “Basic Law” stipulates that the Hong Kong government should “legislate on its own” on national security, it does not rule out the central government making legislation to maintain national security. Article 18 of the Basic Law “defense, foreign affairs and other laws that are not within the scope of autonomy of the Hong Kong Special Administrative Region according to the Basic Law”.
Zhong Jianhua, a scholar of public administration, said that because the “Hong Kong National Security Law” has been criticized by the international community, many countries and international organizations have called for the abolition of relevant laws. Shangfang Sword”.
“The essence of Article 23 is actually the National Security Law. From now on, we can loudly tell the world that this is a local legislation in Hong Kong. The Basic Law should have been there in the first place. It is one country, two systems. This will silence everyone.”
Will retweeting Article 23 spark controversy again?
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In an interview with the official China News Agency a few days ago, Hong Kong Chief Executive Li Jiachao stated that the “National Security Law” and Article 23 add up to “11 crimes even if they do not overlap.” See the great witch”.
Tang Jiahua, a member of the guild, also told BBC Chinese that the most controversial crimes have been dealt with in the “National Security Law”, and the remaining five crimes are believed to be less controversial. “The rest include treason. How can treason be controversial? There are treason all over the world. The British and American writings are more illusory, frightening and unbelievable. I believe Hong Kong will write much better.”
Legal scholar Li Enhao pointed out that whether Article 23 is controversial depends not only on how hot the legal provisions are, but also on procedural regulations, such as “whether the Hong Kong courts have the power to review whether Article 23 is unconstitutional.”
Li said that if the criminal procedure of Article 23 is in line with the “National Security Law”, for example, if the chief executive appoints a designated judge, does not set up a jury, and compares the “National Security Law” to the bail arrangement, etc., it will still be considered as a breach of common law principles and judicial independence. , “At that time, the international community will think that the Hong Kong government is now personally destroying the credibility of the judicial system.”
Control networks and ideology?
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Hong Kong is currently strengthening national security education (file photo).
The Hong Kong government has yet to announce the draft regulations on Article 23, but Chief Executive Lee Ka-chao told the official China News Agency that to prevent national security risks, we must be “vigilant to the influence of ideology”, and the legislation of Article 23 should take into account “new methods emerging in the online world.”
Public policy scholar Zhong Jianhua estimates that 23 articles may be added to control the network, and the articles may be written more vaguely than the National Security Law and are more open to interpretation.
Liu Ruishao, a Hong Kong current affairs commentator who is familiar with Chinese affairs, also expects that Article 23 will strengthen regulations on speech, publishing, and popular culture, “it is conducive to the development of ideological work, similar to patriotic education.”
The Standing Committee of China’s National People’s Congress recently reviewed the “Patriotic Education Law Draft”, which for the first time mentioned the need to strengthen “compatriots in Hong Kong, Macao and Taiwan”‘s identification with China and “consciously safeguard the unity of the motherland and national unity.”
Liu Ruishao pointed out that although opposition to the National Security Law has almost disappeared in Hong Kong for three years, Beijing still feels that the situation is not ideal. “His ideal is that everyone is actively patriotic, not passively obedient.” He went on to say that the CCP has a long-term sense of struggle and the demons of foreign forces, lingering, and no matter what, it will not be at ease.
“Even if Hong Kong enacts Article 23, the demons will be difficult to get rid of, because this is their natural psychology and reaction, as well as their needs and strategies-only in this way can we continue to create political tension.”
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The fourth anniversary of the anti-extradition law demonstrations: What kind of social changes has Hong Kong experienced?
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