No need to legislation on subversion under Article 23

13 September 2002

The chairman of the Hong Kong Democratic Party, Martin Lee, questions the need for a law on subversion.

5 years have passed since the changeover, and Hong Kong is politically stable.
There has been no threat that suggests that a subversion law is in fact necessary.
Hong Kong has done very well without such legislation for many years. It is unclear
why the government has chosen to legislate now, especially when the economy deserves
more attention at the moment.

Further, it is necessary to refer to the drafting history of Article 23 :

After the First Draft was published for consultation, the article was strongly criticized by legislators, the mass media, political commentators, as well as the Consultation Committee of the Basic Law. The main criticisms were twofold: first, that the words 'to undermine national unity' were vague and imprecise, and second, that the concept of 'subversion' was conceptually foreign to the Common Law. In light of the above comments, the article was changed.

The second draft was an improvement from the first for three reasons. First, the reference to 'national unity' was removed and replaced by a series of narrowly defined activities. This is a dramatic improvement because activities such as 'treason, secession, etc.' are conceptually much more precise.
Second, the reference to 'subversion' was removed completely.
Lastly, the words 'on its own' were inserted. This addition was a reflection of the confidence of the Central People's Government in Hong Kong, as well as a reflection of China's respect for Hong Kong's autonomy.

Unfortunately, the June 4th Massacre erupted. As a result, the entire consultation and drafting process was suspended. Drafting did not resume until December 1989. By this time, the leadership in Beijing was uncertain about its ability to hold power. There was great need for control in the Chinese leadership. Consequently, the current wording was inserted - in particular, a reference to 'subversion' as well as a blanket prohibition on foreign political bodies in Hong Kong.

When viewed in context, it is clear that the current wording is a retrograde step. It was quite clear in the Second Draft that Beijing agreed that the HKSAR need not and should not legislate on 'subversion.' Indeed, the Central Government was quite receptive to criticisms by the Hong Kong community. It was only after the June 4th Massacre that this position was reversed.

Beijing's position might have been understandable in light of the circumstances at the time. Nevertheless, it is unclear whether the situation still holds true today. From Beijing's point of view, the need for a subversion law was the greatest at the transfer of sovereignty. But more than 5 years have passed since the changeover, and the political climate in Hong Kong cannot be more stable. No cries for independence have ever been uttered in Hong Kong. No threats against national unity ever appeared. Indeed, if anything, the political stability demonstrates that a subversion law is not necessary at all.

There is a real danger that rights and freedoms will be adversely affected if
such legislation is passed. For example, the Central Government could put pressure
on the SAR Government to use such laws to prosecute dissidents. Even if prosecution
was not initiated, the mere threat of possible prosecution would operate as a serious disincentive, curtailing rights and freedoms. It is simply not possible for individuals to exercise their full rights and freedoms under the threat of prosecution.

Indeed, since Article 23 falls within the ambit of the relationship between Hong Kong and the Central Government, the ultimate interpretation of the article will lie with the Standing Committee of the National People's Congress, and not with the Court of Final Appeal. In other words, if the legislation is passed and ambiguity occurs, there is a real danger that the Hong Kong courts will be under an obligation to refer the issue to the Chinese Government for decision. In other words, the issue will be out of the Hong Kong courts' jurisdiction.

Lastly, the current approach by the Hong Kong Government is worrying - they have reached a decision with the Central Government on legislating, without first consulting the people of Hong Kong. This is dangerous because it is tantamount to allowing the Central Government to dictate what our laws should be. Not only is this an explicit breach of the 'One Country, Two Systems' principle, it is also a breach of Article 23 itself. Article 23 states clearly that it is for the people of the HKSAR, not just the government, to decide 'on its own,' not only the wording of the subversion law, but also on the timing. There is no need to invite intervention from the Central Government on the making of Hong Kong laws. Indeed, such an initiative would project the wrong message all over the world.