Quite literally, "enact law on its own" covers both the decisions on when to legislate and what to legislate against. The Central People's Government had given the SAR Government a free hand to decide, following a thorough public consultation, as to whether there is a need to legislate based on pressing social needs and if and when a democratic government is in place.
The Government has agreed that most of the matters covered by Article 23 are already covered with by our existing laws, including crimes such as arson, bomb making and disruption of public peace. Inchoate and accomplice offences of attempting, aiding and abetting, counselling and procuring the commission of substantive offences are currently covered by the common law. Law enforcement agencies are at present given sufficient powers to prevent crimes from happening. In short, under existing laws, the Government has enough powers to take immediate action against national security crimes without seeking any additional power.
Laws to protect national security (e.g., treason, sedition and theft of official secrets) were drawn up by the colonial government some time ago. They were highly repressive by nature, with the aim to stop citizens from criticising the colonial government and to maintain social stability. However, these laws had not been evoked for decades as Hong Kong society was relatively stable. Against this background, Hong Kong citizens barely noticed the existence of such draconian laws.
However, the threat still exists. For example, provisions criminalising persons who organise or participate in unauthorised public processions were not enforced by the Police and caused no conflict between the Police and the demonstrators. It was only until recently that the Government made use of such provisions to prosecute peaceful demonstrators. It sparked off an immense public debate and was deemed to be a signal that the Government was tightening its grip over the freedom of assembly. Current laws are outdated, harsh and imprecise, the government's job is to modernise the law, and not to make it more repressive.
More importantly, national security laws should be subject to wide public consultation and scrutiny by the democratically elected parliament in democratic regimes. All Government acts are closely supervised by the parliament. Independent courts are able to challenge such acts. In addition, these laws are the products of the unique setting of each country, in which many of them have experienced substantive activities that have been endangering national security for decades and have no choice but to legislate. Under the Basic Law, our legislature does not have sufficient powers and representation to keep the Administration in check. Our power of final adjudication is at the mercy of the Standing Committee of the National People's Congress (SCNPC). It is inappropriate to apply a foreign situation blindly into the Hong Kong context.
Don't be ridiculous. Statements made by the Chief Executive are not legally binding. At the end of the day, it depends on the wordings of the legislation and the prosecution policy that matters. Given empty promises by senior officials and the Chief Executive, and their disdain towards opposite views, we should not take their word on face value.
Let me take the right of abode case as an example. The Government once publicly promised to abide by the Court of Final Appeal ruling on 29 Jan 1999 but later renounced it in less than half a year by asking the SCNPC to overturn the ruling. You should therefore not expect anything from this government.
Setting aside the question of the necessity for legislation, any proposal to restrict basic rights is a matter of public importance and necessitates a need to strictly adhere to proper legislative processes. Given the controversy and sensitivity surrounding the issue, a white bill spelling out the actual provisions is a must. However, senior officials have said repeatedly that the government would not do so. Judging from its refusal to adopt a white bill procedure, it's hardly convincing that the Government is genuine interested in what the public has to say.
Once a law is enacted, everyone is affected. Bearing in mind that political offences are highly subjective in nature, and the decision to prosecute is greatly affected by the current political climate, a string of glaring uncertainties inherent in the government proposals deeply alarms both the legal professions as well as concern groups. You have to understand, once you say yes to legislation, you give the Government the green light to prosecute based on political considerations, including those people who simply express views peacefully. You may fall a prey to the law when you say something against the Government. That is the main reason why we are all so worried.
Finally, the "chilling effect" of the law may silence all different views and eventually lead to self-censorship of the media. Hong Kong is no longer a modern and vibrant society and this cannot be what the Hong Kong people want.
The Government creates new offences (e.g., secession and subversion) and the general public may unwittingly fall prey to this ambiguous and dubious law. For example:
Of course, the Government will try to say it will handle with extreme care and prevent any wrongful prosecution of the innocent. However, in the meantime, they say that it is up to the court to decide. The decision to prosecute however rests solely in the hands of the Government, it can therefore make use of the grey area to prosecute and thus the protection afforded to you is very limited.
Whether you know it or not, if you have a "connection" (e.g. financial transactions or provision of goods such as newspaper or daily necessities) with a proscribed local organization affiliated with a Mainland organization that endangers national security, you may be subject to 7 years' imprisonment and an unlimited fine;
If you obtain the official or state secrets through unlawful means, even if you have an intention to promote public interest, you may be subject to 5 years' imprisonment once you disclose the information to the public; or
Handling of seditious publications without reasonable excuse may subject the person to 2 years' imprisonment.
Not surpisingly, the Government seeks additional powers that is unprecedented and is in contrary to common law traditions. For example, in accordance with common law, the Police are not allowed to enter private premises for investigative purposes without a warrant issued by court. This safeguard is to protect ordinary citizens from harassment and interference of private properties under the name of police investigation. However, it now proposes that an emergency entry, search, and seizure power should be provided to the police for investigating some Article 23 offences. It is worth mentioning similar powers were not sought by the Government when legislating against terrorists. According to the proposal, the Police can search your place for seditious publications without a warrant. Even if there is insufficient evidence to lay a charge on you, you have already suffered in terms of monetary loss and emotional distress.
In fact, the question of trust is irrelevant in our discussion. Legal provisions are written down in black and white and any ambiguity has to be cleared up immediately, leaving no room for maneuvering. After all, having draconian laws in our statute books, no matter whether you enforce them or not, is never a perfect solution. We may be alright for now, but you never know what tomorrow brings.. It's always the best to have a set of laws safeguarding basic human rights values to counteract any possible abuse by the Government.
Mr. Alan LEONG, chairperson of the BAR Association, has rightly pointed out the crux of the issue. He said, "any society governed by the rule of law is based on a mistrust of the Government and its chief. That's why we need to have laws to protect ourselves. If we wholly trust the authority, why not going back to monarchy?"
Silence gives consent. The Government clearly states in its document that it attaches great importance to public comments. If our society as a whole is strongly against the Article 23 legislation, both the CPG and the SAR Government may need to reconsider the impact of the legislation, and hopefully kill off the legislation before it is enacted. In short, no one can fight for your rights and freedoms except yourself. You must seize any chance to fight for your freedoms, never give up any chance to speak out. If you want to make your voice heard, please see the "What can you do" section.