Little Hong Kong: Like it or not, Article 23 is a constitutional duty (Part 34)

Few years ago, I had the opportunity to work with a summer student.  He was smart and always had very interesting things to say.  The most memorable thing he said was that he believed Article 23 should be enacted as soon as possible.  His reasoning was that since there was no way to escape this, it would be advisable if we enact it ourselves in a way that we find most acceptable, rather than have it imposed on us after 2047.

Article 23 is a constitutional duty

Article 23 of the Basic Law provides that the HKSAR “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…”  Given that the HKSAR was allowed to enact Article 23 on its own, this was already a compromise of the sorts.  In many jurisdictions, national security laws are imposed by national legislatures, for obvious reasons.

Enact now or the Central Government will

Grenville Cross, QC, SC, Director of Public Prosecutions from 1997 to 2009, came to a similar conclusion.  In an article published in the SCMP on 1 February 2017 titled “Next Hong Kong chief executive must implement Article 23 national security laws without delay,” Mr. Cross concluded that if we don’t enact the article ourselves, the Central Government may enact it through Annex III, and there might not even be “through train” in 2047.

Balancing freedom with national security

In light of the rise of radicalism in post-Occupy Hong Kong, the matter has become messy, and almost embarrassing.  There are now worries that Article 23 will be used against independence proponents.  Indeed, there should be a balance between freedom of expression which is enshrined in the Basic Law on one hand, and national security on the other.  But we must have a rational discussion about it in the first place.

The polarisation of Hong Kong society has made rational discussion difficult, if not impossible.  When one even brings up Article 23, it will more often than not involve high octane emotions, fear and distress.  In the post-9/11 world, we are gripped with terrorist threats everyday.  Like it or not, Article 23 is a constitutional duty and the earlier we can enact it, the more say we will have in its drafting, and the more opportunities our judiciary will have in developing its case law before 2047.


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