Commentary by Grenville Cross*
As the 2020 Two Sessions meetings got underway in Beijing on Thursday, many of those attending felt that it was high time for the National People’s Congress (NPC) to enact national security legislation for Hong Kong, and the reasons are obvious.
It is now almost 23 years since Hong Kong was reunified with China under the “One Country, Two Systems” principle in 1997, and it has important responsibilities to the rest of the country. Although national security is clearly an aspect of “one country,” Hong Kong was nonetheless entrusted with the task of enacting laws to prohibit acts of treason, secession, sedition and subversion against the central government under Article 23 of the Basic Law. However, although this was attempted in 2003, the move was abandoned after street protests and internal dissent, and Article 23 has still not been implemented.
Macau example of Article 23 legislation
By contrast, Macau, China’s only other special administrative region, enacted its own version of Article 23 in February 2009, less than 10 years after its own reunification. Its national security legislation has worked well and has, among other things, provided Macau with the means of dealing with foreign interference in its affairs. In September, the current chief executive, Ho Iat-seng, explained that, as a tourism center, “Macau cannot afford to fall into chaos.”
In Hong Kong, the legal void has been fully exploited over the past year by anti-China forces. Since June 9, black-clad thugs have regularly attacked police officers with petrol bombs, brutalized visitors from elsewhere in China, and murdered and maimed people with different views. At huge cost, they have destroyed businesses, banks and restaurants, causing many people to lose their jobs, and destroyed public facilities, often by torching MTR stations and wrecking vehicles.
Although the police force has done an incredible job of defending Hong Kong, the laws at their disposal are not sufficiently comprehensive to fully combat the crimes they have encountered.
Local thugs encouraged by people elsewhere
The violence, although perpetrated by local thugs, has been encouraged by people elsewhere who wish to harm China. They know full well that, if Hong Kong fails, it will damage China, which is the aim of many of its geopolitical rivals. After the central government made it clear that it was confident that the Hong Kong Special Administrative Region (HKSAR) government and its highly professional police force could handle the situation, the rioters upped the ante.
Having trashed the HK Legislative Council building and damaged other public buildings, they then attacked the Hong Kong Liaison Office and the Xinhua News Agency building and repeatedly desecrated the national flag and assaulted Putonghua speakers, hoping to provoke Beijing into an armed intervention.
Moreover, the fanatics have made no secret of their objectives, which include using Hong Kong as a base to challenge China’s territorial integrity. Many of them openly call for Hong Kong independence and proclaim that “Hong Kong is not China” in their chants and graffiti. They have rejoiced in destroying the symbols of “One Country, Two Systems,” including copies of the Basic Law and the regional emblem. Their hatred of China, its government and its people, has been brazenly displayed, with their violence directed at destabilizing the country as a whole.
The need for laws that prohibit subversive activity and secessionist behavior has, therefore, never been greater, while the Legislative Council has never been weaker.
Terrorist-type atrocities
Quite clearly, the fanatics imagine that terrorist-type atrocities will advance their cause. In 2019, for example, the police handled 187 explosives cases, a 60 percent increase over 2018. Since June, the police have cracked fifteen significant bomb cases, with approximately 2.6 tons of explosives and chemicals seized in early March alone, along with three homemade bombs.
Although, evidence permitting, it may be possible to prosecute the culprits for plotting terrorist-related bombings, under section 11B of the United Nations (Anti-Terrorism Measures) Ordinance (Cap.575), the predicate offenses of subversion and attempting to split the country must also be prosecutable.
[A predicate offense is a crime which is a component of a larger crime.]
Given the warning signs, law enforcers must have all the tools they need to protect Hong Kong before the subversive operations resume. Quite clearly, no country can tolerate terrorist-type activities on its soil, let alone attempts by foreign forces to destabilize a part of its territory.
What is urgently required, therefore, is a subversion law, which criminalizes conduct aimed at disestablishing, intimidating or overthrowing the central government by force or other serious criminal means. Also necessary is a secession law, which prohibits activities designed to withdraw a part of China by force or serious criminal means, or engaging in war. Anybody involved in urban warfare must expect to face the consequences.
Under the Societies Ordinance (Cap.151), the secretary for Security is able to control the activities of foreign political organizations in Hong Kong. However, it is also necessary to criminalize organizing or supporting the activities of any organization proscribed on national security grounds, including organizations affiliated with mainland bodies which have been banned by the central government for security reasons.
Clearly beyond the pale
Moreover, anyone who colludes with foreign powers to damage the national interest by harming Hong Kong is clearly beyond the pale and must be within reach of the criminal law.
Although laws in Hong Kong are normally enacted through the Legislative Council, there are real difficulties where national security legislation is concerned. Although Hong Kong has a constitutional duty to enact Article 23, some people will go to any lengths to prevent it, and the legislators who support them have made the Legislative Council dysfunctional.
If the HKSAR government announced that it was reviving Article 23, there would again be violence on the streets with considerable bloodshed, and the Legislative Council might again be attacked, as happened on June 12 and July 1.
The Basic Law, fortunately, provides a solution to this dilemma. Under Article 18, the Standing Committee of the NPC can place national laws related to defense, foreign policy or “other matters outside the limits” of Hong Kong’s autonomy in the Basic Law’s Annex III.
When this happens, Hong Kong is then required to apply the law locally, whether by promulgation or legislation. Given the difficulties in enacting laws, promulgation is now the obvious course to adopt. However, before this can happen, the NPC must first enact national security legislation that is tailor-made for Hong Kong and can be promulgated immediately upon its placement in Annex III.
A special law of this sort will require close liaison between the central and regional governments, as well as the input of the law drafting division of Hong Kong’s Department of Justice, as its format will need to comply with the standard structures used in law drafting in Hong Kong to avoid further delay.
Although promulgation has not happened previously, it is unavoidable, given the urgency of the situation and the existential threats. If a national law is simply placed in Annex III to await local legislation to give it effect, the process may drag out endlessly.
An example of this is the national anthem law, which was added to Annex III on November 4, 2017, but has still not been enacted, primarily because of filibustering by anti-China legislators. This must not be allowed to happen to the national security legislation as time is now of the essence.
As all right-thinking people now recognize, Hong Kong must be fully protected from those who wish it ill, and its people are entitled to a safe future.
*Grenville Cross, a senior counsel and law professor, was previously the director of Public Prosecutions of Hong Kong Special Administrative Region (HKSAR)Phrase in square brackets and subheadings added by The Macau Post Daily
– Courtesy CGTN
