PART 7: Article 23 Series


The Article 23 draft legislation was made public yesterday. The official bungling just prior to publication was nothing short of breathtaking. In terms of the content, whilst some concerns appear to have been addressed, surprisingly, new concerns have arisen. The most intriguing new proposal is for "secret trials" in the case of appeal on proscription.


The HKSAR Government had hoped that with publication, fears could be laid to rest - it looks like there will now be a fresh round of questions. A key issue for the government is the lost of public trust.


A. Fear, Trust and Respect


1. Two extraordinary events happened this week: Firstly, on 9 February, David Li, chairman of the Bank of East Asia and the LegCo representative for the banking constituency, lashed out at the Secretary for Security (SS). Secondly, on 10 February, Eden Woon, the CEO of the Hong Kong General Chamber of Commerce (HKGCC) said he had seen the Blue Bill (draft legislation) when it had not yet been published.


2. David lashes Ip: At a high profile Bank of East Asia event, David Li took a very public swipe against the SS for going behind his back to bankers to check on whether he had properly represented their views on Article 23.


3. Regina tells Eden: Eden Woon's slip of the tongue let out to the media that he had seen the Blue Bill thereby created an uproar among legislators who were upset that the HKGCC had seen the long-awaited bill before them. Woon subsequently said he didn't see the bill itself but just some bits of it.


B. Analysis


1. Li feels the SS either did not trust him to relay accurately his constituents' concerns and/or she sought to intimidate them by calling them up to check.  Li is as blue-blooded as you can get in Hong Kong. He is usually mild manner, pro-establishment and has good relations in Beijing. His preference is to avoid controversy. During the consultation period for Article 23 legislation, he had publicly stated that the foreign banking community had reservations about the government's proposals. For a person such as Li to state his anger in public indicates that he felt he had no other choice.


2. Legislators have long felt frustrated because the government did not pay them the proper respect. By showing the Blue Bill or bits of it to the HKGCC first is tantamount to treating a chamber of business with more respect than LegCo.


3. The most senior people in government had apparently been going round to those they believe to be "friendly" to seek support. The HKGCC is obviously one such party. The government sought to have such folks come forward to say they were happy with the Bill except they didn't manage to orchestrate it well enough leaving the sour taste that the government cares more about "form" than "substance". If there are no problems with the Bill, then just show it to everyone.


C. National Security (Legislative Provisions) Bill


1. The Bill is hard to read. It is an amendment bill, seeking to amend a number of existing laws. Thus, just looking at the draft Bill will not give you a full draft with the rest of those other pieces of laws.


2. Lawyers and even LegCo's legal unit will have to first piece together the amendments with the existing laws to see what the full effect will be. It will take a few more days before we will hear from the legal experts how they interpret exactly what is being proposed.


3. On a quick reading, the experts had this to say:


(a) The offence of sedition will continue to be an offence designed to incriminate mere speech;

(b) Additional police search powers are unacceptable;

(c) The "proscription mechanisms" will continue to incriminate mere association between a local organization and a proscribed one on the Mainland; and

(d) The new proposal for secret trials as part of the mechanism for appeal against proscription of local organization is deeply worrying.


D. Analysis


1. "Trust Us" and "lets move on" strategies


Pro-establishment figures who trust the government believe nothing much will happen after the passage of the Bill. They feel they know the people in the Department of Justice, the Security Bureau and the Chief Executive well enough to feel that they won't use the legislation to curb free speech and association. They like to believe that the Bill, once passed, will be put in the closet. The Chief Executive likes to think that the best strategy is for the government to push for quick passage so that they can move on to other troubling issues like the budget deficit.


2. Danger of low trust


The trouble with those lines of thinking is that very few people know the top people in government. The public judge how they feel by government action. So far, they don't trust the government. When the government wants to deal with other tough issues, with very low public confidence and trust in the government, it will make it very much harder for them to get things done.