“As long as we work on the basis of ‘loving the country and loving Hong Kong’, there will always be hope,” said the city’s outgoing Secretary for Security at a dinner in Wanchai’s Grand Hyatt, organised by various pro-Beijing trade unions.
“But sometimes I see an unhealthy wind blowing across society. People mix up what is right and what is wrong, what is black and what is white. I even sense a Cultural Revolution-era mentality and language in some of the media.”
The speech was not delivered in 2017 – but in the pivotal year of 2003. The city has experienced many changes since, but parallels can be drawn in the tense political atmosphere and the acrimonious battles in the legislature.
At the heart of the anxiety was the government’s failed bid to enact national security laws – a constitutional duty under Article 23 of the Basic Law – which the pro-democracy camp argued would have destroyed the rights and freedoms of Hongkongers.
Today the Article 23 debate has been reignited in the context of the rise of pro-independence sentiments in Hong Kong. While Chief Executive Carrie Lam has said she will not introduce national security laws until socio-economic conditions improve, Beijing official Li Fei warned in a widely-publicised speech in November that their absence created legal loopholes that adversely affected the city.
Pro-Beijing figures took Li’s lead in demanding preparations to introduce the laws. Pro-democracy lawmakers and scholars have interpreted moves such as the changes to the legislature’s house rules and the West Kowloon joint checkpoint arrangement as steps to clear constitutional obstacles.
What was wrong – or perhaps, what was right – about 2003’s National Security (Legislative Provisions) Bill?
A misguided debate?
Article 23 of the Basic Law states:
“The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organisations or bodies from conducting political activities in the Region, and to prohibit political organisations or bodies of the Region from establishing ties with foreign political organisations or bodies.”
When drafted in early 1989, the article simply demanded that Hong Kong enact laws to prohibit “treason, secession, sedition, or theft of state secrets.” It did not mention “subversion,” a concept familiar to China but less to the Anglophone common law world, vaguely referring to overthrowing or undermining the established order.
The draft also did not expressly protect the central authorities. “Foreign forces” were not a concern.
Then the city exploded in protests against the Tiananmen Square Massacre, and local activists rescued Beijing’s student leaders from persecution. In response, the Basic Law Drafting Committee introduced an expanded version of the article, which remains to the present day.
But for some critics, the question raised by Article 23 is not what to enact, but whether to enact new laws at all. As a British colony, Hong Kong already had very broad definitions of treason and sedition in the Crimes Ordinance.
In June 1997, the colonial Legislative Council – which lost its legislative status after the handover – enacted the Official Secrets Ordinance, banning certain unauthorised disclosures of information. “[It was passed] with the agreement of the Sino-British Joint Liaison Group that this would take care of the theft of official secrets… in Article 23,” veteran barrister Margaret Ng told HKFP.
The same month, the Shenzhen-based Provisional Legislative Council – which transitioned to become Hong Kong’s official legislature after the handover – amended the Societies Ordinance. The amendments banned political groups from having ties with their overseas or Taiwanese counterparts.
With these existing laws in mind, scholars such as Hong Kong University professor Johannes Chan are sceptical as to whether – by asking Hong Kong to “enact laws” – Article 23 really means that the government has to table a fresh bill.
“We shouldn’t say that Hong Kong has failed to fulfil its constitutional duty under Article 23. We should ask whether existing laws already do so,” Chan told a conference last March.
A possible counterargument is that the existing law on treason and sedition is so broad that it is unconstitutional.
“It was colonial legislation, it was very draconian, and if it was applied… much of it would have become obsolete because of the Bill of Rights Ordinance,” said Ng. This ordinance was Hong Kong’s landmark 1991 law adopting international human rights standards.
Only two treason trials have ever been documented in Hong Kong’s law reports: those of local resident Lai Kit (1946) and Japanese-Canadian Kanao Inouye (1947). Both were involved in abuses while serving Japanese forces in Hong Kong during the Second World War.
Setting the stage
Ng was the legal constituency lawmaker at the time of the Article 23 saga. To her, the government’s announcement to begin public consultation for a proposed national security bill came suddenly.
“People were worried about passing Article 23 laws since the enactment of the Basic Law in 1990,” she told HKFP. “The government always responded ‘there’s no rush, but there’s a constitutional duty to do so’.”
A month prior to the announcement, the Legislative Council had enacted the United Nations (Anti-Terrorism Measures) Ordinance, a law that enhanced measures against terrorist acts and financing after the September 11 attacks.
The terrorism law was pushed through with unusual haste without public consultation. The Bills Committee – responsible for scrutinising proposals – held 14 meetings within six weeks. During the ninth meeting, the government set a deadline for passing the bill to the House Committee, responsible for voting. Pro-Beijing lawmaker Lau Kong-wah likened the process to a “newly-licensed driver who goes speeding.”
The bill’s original provisions were criticised for their breadth; one proposal even gave the chief executive the power to designate anyone as a terrorist upon reasonable grounds. The government responded with concessions, such that the chief executive could only designate people already on a United Nations sanction list as terrorists.
In July 2002, less than three months after its introduction, the legislature passed the anti-terrorism bill.
Then came the national security bill. The Hong Kong government sought the views of British human rights lawyer David Pannick, and even published a 76-page consultation document. But the latter was again criticised as vague.
“We realised that the government was intent on introducing national security legislation,” said Ng. “[We asked] ‘why don’t you produce a white bill – a draft bill – so that people can comment on exactly what you mean by these offences?’”
But like it did for the anti-terrorism law, the government tabled a bill directly to the legislature – a “blue bill” – in February 2003. The government had repeated its methods.
The spring of discontent
At the time, Regina Ip and Elsie Leung respectively led the Security Bureau and the Department of Justice. But Hong Kong University professor and prosecutor Simon Young told HKFP that colonial-era British officials, like solicitor-general Robert Allcock, were more involved as hands-on drafters for the bill.
“[They] were quite familiar with the common law system and methods… They were less familiar with the mainland system. No doubt this team would have consulted the mainland authorities, but I think the mainland authorities gave this team some free rein.”
Young says that overseas anti-terrorism laws were likely greater influences on the content of the bill than mainland legal concepts, which were mentioned only sporadically in the consultation document.
But the bill immediately attracted criticism from legal experts for a lack of clarity in specifying what acts are criminal, and whether they must be conducted with intention or some state of mind.
“Looking at the proposed legislation, you will not be able to find out precisely what would get you into trouble, and what would not,” said Ng.
“There are vague definitions of subversion, sedition, treason – all these traditional things which would greatly put you in danger of the law. The government… was not in a position to explain how it would make them more certain.”
”Proposed offence of treason (maximum penalty: life imprisonment)“
Section 2, Crimes Ordinance (abridged):
(1) A Chinese national commits treason if he—
(a) with intent to—
(i) overthrow the Central People’s Government;
(ii) intimidate the Central People’s Government; or
(iii) compel the Central People’s Government to change its policies or measures, joins or is a part of foreign armed forces at war with the People’s Republic of China;
(b) instigates foreign armed forces to invade the People’s Republic of China with force; or
(c) assists any public enemy at war with the People’s Republic of China by doing any act with intent to prejudice the position of the People’s Republic of China in the war.
”Proposed offence of subversion (maximum penalty: life imprisonment)“
Section 2A, Crimes Ordinance (abridged)
(1) A person commits subversion if he—
(a) disestablishes the basic system of the People’s Republic of China as established by the Constitution of the People’s Republic of China;
(b) overthrows the Central People’s Government; or
(c) intimidates the Central People’s Government,
by using force or serious criminal means that seriously endangers the stability of the People’s Republic of China or by engaging in war.
”Proposed offence of secession (maximum penalty: life imprisonment)“
Section 2B, Crimes Ordinance (abridged)
(1) A person commits secession if he withdraws any part of the People’s Republic of China from its sovereignty by—
(a) using force or serious criminal means that seriously endangers the territorial integrity of the People’s Republic of China; or
(b) engaging in war.
”Proposed offences related to sedition (maximum penalty: seven years’ imprisonment)“
Section 9A, Crimes Ordinance (abridged)
(1) A person commits sedition if, subject to [certain qualifications], he—
(a) incites others to commit an offence under section 2 (treason), 2A (subversion) or 2B (secession); or
(b) incites others to engage, in Hong Kong or elsewhere, in violent public disorder that would seriously endanger the stability of the People’s Republic of China.
Section 9C (abridged)
(2) Subject to [certain qualifications], a person who—
(a) publishes, sells, offers for sale, distributes or displays any seditious publication;
(b) prints or reproduces any seditious publication; or
(c) imports or exports any seditious publication,
with intent to incite others, by means of the publication, to commit an offence under section 2 (treason), 2A (subversion) or 2B (secession) is guilty of an offence.
According to Young, several other proposals in the national security bill – such as the granting of extra powers to the police – were not even Article 23 requirements.
“The justification for having these added measures was quite weak,” he added. “It was not based on any real threats or any real problems.”
”Proposed police powers when a high-ranking officer reasonably suspects that a national security offence is being committed“
Section 18B, Crimes Ordinance (abridged)
(2) A police officer acting under a direction given under subsection (1) in relation to any premises, place or conveyance—
(a) may enter the premises or place and, if necessary, break open any door or window of the premises or place for that purpose;
(b) may stop and board the conveyance;
(c) may search the premises, place or conveyance or any person found therein;
(d) may seize, detain or remove anything found in the premises, place or conveyance which appears to him to be or to contain evidence of an offence under section 2 (treason), 2A (subversion), 2B (secession), 9A (sedition) or 9C (handling seditious publication);
(e) may detain the conveyance for such time as may be necessary for his exercise of the power conferred by paragraph (c) or (d); and
(f) may remove by force any person or thing obstructing him in the exercise of any power conferred by this subsection.
A proposal to ban organisations “subordinate” to those banned in mainland China was criticised as targeting the Falun Gong spiritual group. Another proposal to expand the Official Secrets Ordinance was met with strong objections from the Journalists’ Association.
”Proposed powers to ban organisations ‘subordinate’ to those banned in China“
Section 8A, Societies Ordinance (abridged)
(1) The Secretary for Security may by order proscribe any local organisation to which this section applies if he reasonably believes that the proscription is necessary in the interests of national security and is proportionate for such purpose.
(2) This section applies to any local organisation—
(c) which is subordinate to a mainland organisation the operation of which has been prohibited on the ground of protecting the security of the People’s Republic of China, as officially proclaimed by means of an open decree, by the Central Authorities under the law of the People’s Republic of China.
”Proposed ban on disclosures of Hong Kong affairs that are the responsibility of Beijing“
Section 16A, Official Secrets Ordinance (abridged)
(1) A person who is or has been a public servant or government contractor commits an offence if he makes, without lawful authority, a damaging disclosure of any information, document or other article—
(a) that relates to any affairs concerning the Hong Kong Special Administrative Region which are, under the Basic Law, within the responsibility of the Central Authorities; and
(b) that is or has been in his possession by virtue of his position as a public servant or government contractor.
Over the course of spring, the bill was debated in Bills Committee hearings that sometimes descended into quarrels involving Regina Ip and the pro-democracy camp.
“We proposed our amendments, but it was not only legislators, but civil society… the press, religious organisations, the Bar,” said Ng.
“It was not only Hong Kong civil society, but [the bill also attracted] international attention, especially international legal bodies, who were very concerned because there had just been anti-terrorism laws that greatly infringed on freedoms in their own countries… The English Bar, the Canadian Bar, the New York Bar and so on.”
Beginning in June, the government put forward five rounds of amendments that diminished the severity of the bill’s provisions. Sedition could only be committed with intent. The extra police powers were removed. The government could still ban organisations for national security reasons – but not just because they are banned in China. You could defend yourself against charges of exposing secrets by claiming there was public interest in doing so.
But the pro-democracy camp was not satisfied. “Even if all the amendments that we proposed were to be passed, it would still be a very threatening piece of legislation,” added Ng. “But that was the best we could do.”
The dramatic fall of the national security bill is well-known. 500,000 Hongkongers took to the streets to protest on the sixth anniversary of the transfer of sovereignty. Buses and trams ground to a halt among the crowds. The first demonstrators arrived at government headquarters at 4pm; the last at 10pm.
The Liberal Party then withdrew its support for the bill. The government deferred debate of the bill, and later removed it from the legislature altogether. Ip resigned.
Young says that – viewed in isolation – the 2003 attempt to change existing security laws was a positive if flawed attempt at law reform: “It was quite a significant intellectual challenge to try and transform our existing laws.”
“What the government proposed at that time was actually quite a decent conceptualisation. The approach was really to try and thin down… treason and sedition, in order to create these two new offences of subversion and secession… In doing so, you had four relatively narrow offences, but there were still problems with the language.”
Given that the national security bill failed, Hong Kong’s current laws remain curiously archaic.
”Section 2, Crimes Ordinance: Treason (abridged)“
(1) A person commits treason if he—
(a) kills, wounds or causes bodily harm to Her Majesty, or imprisons or restrains Her;
(b) forms an intention to do any such act as is mentioned in paragraph (a) and manifests such intention by an overt act;
(c) levies war against Her Majesty—
(i) with the intent to depose Her Majesty from the style, honour and royal name of the Crown of the United Kingdom or of any other of Her Majesty’s dominions; or
(ii) in order by force or constraint to compel Her Majesty to change Her measures or counsels, or in order to put any force or constraint upon, or to intimidate or overawe, Parliament or the legislature of any British territory;
(d) instigates any foreigner with force to invade the United Kingdom or any British territory;
(e) assists by any means whatever any public enemy at war with Her Majesty; or
(f) conspires with any other person to do anything mentioned in paragraph (a) or (c).
(Note that the words United Kingdom, British territory, Her Majesty and Crown are to be interpreted with reference to China and its government.)
But 15 years later, Beijing’s national security frontiers may have shifted from the Falun Gong to new threats, such as the Hong Kong independence movement. As a much more powerful and confident regime, its strategies for managing the city may also be changing. In 2016, it interpreted the Basic Law to effectively disqualify six newly-elected opposition legislators.
Following a meeting with President Xi Jinping in December, Chief Executive Carrie Lam told reporters that it would be difficult to begin Article 23 legislation this year. In January’s legislative question-and-answer session, she suggested that her priorities this year would be to pass the West Kowloon joint checkpoint arrangement and a national anthem law.
But if, and when the time comes, how will Hong Kong cope with a new national security bill?
See Part II: Old wine in new bottles for Hong Kong’s national security debate.