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Talking about the National Security Law with the Dean of the Law School of Hong Kong University (Part 1)-How can I talk about the future when I only see fear | 01 Weekly

2020-05-24T12:03:04.253Z


The Third Session of the Thirteenth National People ’s Congress was unveiled last week. The fifth item on the agenda is to consider the motion of the Standing Committee of the National People ’s Congress to submit a bill for consideration as a draft of the “Hong Kong version of the National Security Law”.


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Written by: Ling Yichen

2020-05-24 19:56

Date of last update: 2020-05-24 19:56

The third session of the 13th National People ’s Congress was unveiled last week. The fifth item on the agenda was to consider the motion of the Standing Committee of the National People ’s Congress to submit a bill for consideration as a draft of the “Hong Kong version of the National Security Law.” It covers secession, subversion of state power, terrorist activities, Foreign forces and interventions by foreign forces do not need to be reviewed by the Hong Kong Legislative Council. They are directly incorporated into the implementation of the Hong Kong Basic Law through Annex III. Chief Executive Lin Zhengyue issued a statement saying that this law will not affect the rights and freedoms enjoyed by Hong Kong residents in accordance with the law, nor will it affect the exercise of the independent judicial power and final adjudication power of the Hong Kong judiciary. However, when the black cloud suddenly crushed the city, the words "Hong Kong is dead" quickly spread. "Legislation through Annex III is the worst way. (Central) Patience is gone, that's it," Fu Hualing, Dean of the Law School of the University of Hong Kong, sighed three times in an interview with "Hong Kong 01", "but life goes on (life will continue), Hong Kong will still have tomorrow, and there will be the day after tomorrow. Think about how to face this reality. "

Wang Chen, deputy chairman of the Standing Committee of the National People ’s Congress, made a statement on the “Decision of the National People ’s Congress on Establishing and Improving the Legal System and Enforcement Mechanism for the Maintenance of National Security in the Hong Kong Special Administrative Region (Draft)”, pointing out that Article 23 of the Basic Law is legislation Not only embodies the country ’s trust in the SAR, but also clarifies the SAR ’s constitutional responsibility and legislative obligations to maintain national security. However, due to the anti-China chaos in Hong Kong and hostile external forces' strong obstruction and interference, the SAR has failed to legislate on 23 articles. And there is a risk of being put on hold for a long time. The current laws of the SAR are difficult to effectively implement. It is necessary to establish and improve the legal system and enforcement mechanism of the Hong Kong SAR to maintain national security at the national level, and change the long-term "non-defense" situation in the field of national security. The sudden action of the Central Government caught Hong Kong off guard. Even though the special capital that attended the National People's Congress in Beijing failed to know the specific details, its statement emphasized that the "Hong Kong version of the National Security Law" did not modify the Basic Law, nor did it replace or exclude the Basic Law. Article 23, the Hong Kong Special Administrative Region still has the responsibility to complete the legislative provisions of Article 23 of the Basic Law as soon as possible.

On May 22, 2020, Wang Chen, vice chairman of the National People's Congress, addressed the opening ceremony of the NPC session. (Profile picture / Associated Press)

Article 23 or the final leeway of the National Security Act

Although both the NPC spokesperson and Lin Zhengyue said that the "Hong Kong version of the National Security Law" only targets "Hong Kong independents and violent elements endangering national security," it is not just those with "ghosts in their hearts" but most Hong Kong citizens. In the "Hong Kong version of the National Security Law", "crimes" such as splitting the country, subverting the regime, and external forces can easily remind Hong Kong people of the fear of 23 pieces of legislation 17 years ago. Fear, flooding Hong Kong. "Are you afraid?" Fu Hualing asked the reporter with a "pre-emptive" smile. He paused for a moment and put his smile away: "You will worry, everyone will worry, and of course I will. But if we only see fear, we will lose the qualifications and conditions to talk about the future."

Although the implementation of Annex III is the unexpected "worst result" and is considered to be the embodiment of the central government's "face-slapping" SAR government, it does not mean that "Hong Kong is dead". Fu Hualing believes that even under such circumstances, there is still a glimmer of hope—using the subtle relationship between the "Hong Kong version of the National Security Law" and Article 23. Since the specific provisions of the draft have not been set out, can we strive for local legislation on 23 articles to define the various regulations in the "Hong Kong version of the National Security Law"? "Perhaps Hong Kong still has some room to influence the definition of specific laws. Can the Hong Kong government do something at this time? Can the representatives of the Hong Kong People's Congress contribute in the process to reflect the voice of Hong Kong society in the legislative process? But he said that because there is no official identification and instructions for the relationship between the two, and the draft "Hong Kong version of the National Security Law" has not yet been issued, he can only guess: "If the National Security Law regulations are not very specific, this will give Hong Kong a lot of Let ’s make it concrete for ourselves. In the future, maybe there will be certain actions and actions on the Hong Kong side, which will make people feel relieved and give some trust to the Hong Kong government to do something. Hope so, hope so ... "

It seems that even with the new law, the discussion and legislation on Article 23 of the Basic Law cannot be ended. Article 23 legislation is the "introduction" to the central government's loss of trust in Hong Kong and the shadow of Hong Kong people. Fu Hualing said that the existence of Article 23 was originally a symbolic "political slogan", and the core is that the "high degree of autonomy" of Hong Kong after the return did not pose a threat to Beijing. With the growing contradictions between the land and port caused by new immigrants and parallel importers and other issues, the rise of local thoughts, coupled with the umbrella movement and the riots in Mong Kok, the "Hong Kong Independence" emerged in the anti-registration movement last year-despite the relevant "Hong Kong Independence" In the discussion, most people think it is not feasible, but this force still arouses the central government's concerns. "It ’s useless to explain to him (the central government) that these ideas are only a few, small things, do n’t worry. This problem has already appeared and is on the table, he (the central government) ca n’t help not worry." Fu Hualing thinks, The central government's worries force the SAR government to think about how to convince the central government that the SAR can handle this issue well and is dealing with it.

Fu Hualing believes that there is still some room for Hong Kong at present, that is, through 23 pieces of legislation to define the various regulations in the "Hong Kong Security Law." (Photo by Gong Jiasheng)

When the Hong Kong government first pushed 23 pieces of legislation in 2003, the then Secretary for Justice, Liang Aishi, described the 23 pieces as "like having a knife on your head." Although she explained in a 2018 interview that this statement came from a member of parliament, the relevant statement is still widely used in society. Recently, the discussion on Article 22 of the Basic Law and the local legislation of the National Anthem Law has also caused a stir. In addition, the "two offices of the Hong Kong and Macao Office and the Central Liaison Office" have all been considered by society as 23 articles. The precursor and foreshadowing of the "knife".

Fu Hualing believes that this "knife" metaphor is too exaggerated. He also said that even if the 23 pieces of legislation are described in this way, this "knife" has already existed and has always been there. It is not "not exist without mentioning it." "At that time, it was just a political statement of law, which was manifested by several crimes, but in fact these crimes have long been in our existing laws. Our Societies Ordinance, Criminal Offences Ordinance, Official Secrets Ordinance That's it. In a sense, all parties are "scramble" this topic, which makes everyone panic, but really returned to "in terms of law to talk about law", these are already in that place. "

On September 24, 2002, the Hong Kong Government promulgated the "Consultation Document on the Implementation of Article 23 of the Basic Law". In addition to amending the current law but covering the outdated laws, it also consulted on the unprecedented proposal to split the country and subvert the country. Article 23 of the Basic Law stipulates: "The Hong Kong Special Administrative Region shall legislate to prohibit any acts of treason, split the country, incite rebellion, subvert the Central People's Government and steal state secrets, and prohibit foreign political organizations or groups from carrying out politics in the Hong Kong Special Administrative Region. Activities, prohibiting political organizations or groups in the Hong Kong Special Administrative Region from establishing relations with foreign political organizations or groups. "The fourth paragraph of the consultation document pointed out that some of the crimes mentioned in the existing legislation already provide for "(Chapter 200) Part 1 and 2 of treason (" Treason "in existing regulations) and incitement crimes;" Official Confidentiality Ordinance "(Chapter 521) deals with the protection of official data;" Society Ordinance "(Chapter 151) Chapter) regulates matters such as foreign political organizations. That is to say, the seven acts that require the SAR to “self-enact” already existed in the previous laws, so the consultation document aimed at splitting and subverting the country and aggravating the legislation to “ensure that the Hong Kong SAR will not be used as support in The base for instigating or targeting subversive activities in the Mainland. "

These laws do not refer to the concepts and provisions of national security under Mainland laws, but are carried out in accordance with the legislative procedures of Hong Kong under the "two systems". They also need to conform to the principles of the rule of law and the spirit of law in Hong Kong. Fu Hualing said: "Some of these problems are easier to solve, and some are more difficult to deal with, because legislation is not completely suppressed from the top down, but requires social recognition and support. Only in this way will there be a benign legislative cycle, and subsequent law enforcement will also It will be easier. "At that time, the legislation was opposed by 500,000 people. When the Legislative Council voted, then the chairman of the Liberal Party, Tian Beijun, did not support the hurried legislation and resigned as a member of the guild. The Hong Kong government did not have enough votes to legislate. The then Chief Executive, Dong Jianhua, finally announced the withdrawal of the National Security (Legislative Provisions) Bill, and promised to do a good job of the economy first and wait until the public was fully consulted before reaching legislation.

Demonstrators gathered at Hennessy Road and waved the banner of "Recovering the Revolution of Hong Kong Times". (Photo by Lu Yiming)

The piece-cutting legislation may consider that fear originates from mistrust

Fu Hualing believes that putting the laws of all crimes together rather than separating them gradually is one of the reasons for panic among citizens: "Step by step is a slow and feasible process to deal with problems. Deal with a part first Forming a precedent can have a certain demonstration effect, and one by one. "This is what Liang Aishi proposed in 2006. When the 23rd article is enacted in the future, the government may consider" cutting pieces ". Because Article 23 involves more scope, it can be explained to the public in detail one by one before enacting legislation. I believe it will make the public more acceptable. The reason why the citizens were afraid of the 23 pieces of legislation in that year was not only caused by the inadequacy and mistakes made by the government in the early consultation and publicity, but also because some citizens worried that the regulations might threaten personal rights and freedoms.

The consultation document issued in September 2002 caused great public response. As of December of that year, the Security Bureau had received more than 90,000 submissions. Various political parties, professional organizations and ordinary citizens have put forward suggestions on the legislative process of the provisions and expressed To worry about different levels and aspects. The Hong Kong Bar Association stated in its submission on the legislation of Article 23 of the Basic Law that it understands the responsibility of the SAR Legislative Council to make legislation on its own in accordance with Article 23, but believes that the existing legislation in Hong Kong has generally prohibited the acts listed in this Article (seven crimes) Therefore, there is no need to enact new crimes or formulate new regulations. At the same time, it proposes that "the legislation established under section 23 must not be ambiguous, and must be drafted in a narrow and precise manner as a guiding principle." That is to say, the biggest controversy lies in whether to make two counts of splitting the country and splitting the Central People's Government. The difficulty of operation lies in the clear definition of various acts.

The news and publishing community focused on the disclosure of state secrets and incitement to rebellion. For example, the Asian Publishing Industry Association "strongly requested the authorities to amend the Bill to delete and deal with inflammatory publications", and said that the "grey area" created by this provision would cause journalists, publishers and retailers to self-censor. The Hong Kong Journalism Executives Association has also issued three submissions, stating that the government did not add "public interest" as a defense reason for unauthorized disclosure of state secrets at the request of the press. The author believes that this draft will affect the freedom of news interviews and reporting.

The then Chief Executive, Dong Jianhua, announced the amendments to the original draft provisions after the March 1st Parade in 2003, but the regulations ultimately failed to escape the fate of being passed back. (Profile picture / photo by Yu Junliang)

On July 5, 2003, after the July 1st Parade, the government made concessions on three of the 23 draft legislations that made more comments. Dong Jianhua announced changes to the original draft provisions, including:

1. Delete the clause that bans subordinate organizations in the mainland;

2. Join public interest defense reasons;

3. Cancel the police search right.

However, this move was not widely accepted, and there was a final withdrawal.

Today, some people think that they should wait until the social atmosphere and economic environment are stable, and then put forward 23 pieces of legislation again, but some people think that public opinion is already low, and it is necessary to take advantage of the current situation. Fu Hualing thinks that the current legislation is a good time? Continue reading: Talk about the National Security Law with the Dean of the Law School of HKU

The above excerpt is from the 215th issue of "Hong Kong 01" Weekly News (May 25, 2020) "Talking about the" Hong Kong version of the National Security Law "and Article 23-How to talk about the future only when you see fear."

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The "Hong Kong 01" weekly newspaper is available at major newsstands, OK convenience stores and Vango convenience stores. You can also subscribe to the weekly report here to read more in-depth reports.

Hong Kong version of the Basic Law of National Security Law 23 Basic Law One Country Two Systems Two Meetings In-depth Report 01 Weekly National Anthem Legal People's Congress

Source: hk1

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