Old and New Laws
Why do we have an Article 23? I would like to start with a bit of history.
By Letter Patent dated 5th April 1843, Queen Victoria "erected" Hong Kong Island and its Dependencies into a colony of the British Crown.
By a "Convention between Great Britain and China respecting an extension of Hong Kong Territory" signed at Peking, 9th June 1898, the New Territories were leased to Britain for 99 years from 1st July 1898.
The lease was due to expire on 30th June 1997. Upon expiry the British Government would have had no legitimacy in respect of the New Territories. Hong Kong without the New Territories had become unimaginable. A solution had to be found. This took the form of an agreement between Britain and China embodied in the Joint Declaration of 1984. The deal was "One Country, Two Systems". Treaties and leases were swept away. Hong Kong became part of China but "the previous capitalist system and way of life shall remain unchanged for 50 years".
How was this legally implemented? The British Government passed the Hong Kong Act 1985 which said "As from 1st July 1997 Her Majesty shall no longer have sovereignty or jurisdiction over any part of Hong Kong." On 4th April 1990 the Chinese Government promulgated the Basic Law, stipulating that it would be put into effect as of 1st July 1997. The Basic Law, enacted by the National People's Congress, became the constitution document for Hong Kong, and the legal basis for our status quo in Hong Kong. It is the legal embodiment of the political solution for post 1997 Hong Kong.
The Basic Law has 160 articles. Article 23 provides that "The Hong Kong Special Administrative Region 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 to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies."
We are stuck with Article 23. The question is what would be a sensible approach.
The approach adopted in the Consultation Document is to make additions and revisions to the existing law. The result will be a curious and alarming amalgam of the old and new.
In paragraph 4.11 of the Consultation Document the Government pointed out that "sedition" in the Chinese version of Article 23 (煽動叛亂) is rendered as "incitement to [armed] rebellion". It is much more direct than the subtle and all-embracing language in which "seditious intention" is defined in the Crimes Ordinance: for example "excite disaffection against the CPG" or "raise discontent or disaffection among Chinese nationals or HKSAR inhabitants" or "counsel disobedience to law or any lawful order".
The Government says "incitement to rebellion" in Article 23 is essentially the same as sedition under existing Hong Kong law. This is true up to a point because sedition would include incitement to rebellion. However, I think it would be straining Article 23 to say that it requires the enactment of the seditious offences now existing. In fact, having complied with Article 23, we should be free to do what we like regarding the law on sedition and the opportunity should be taken to review the existing law.
The Government has proposed to provide specifically that inciting others (a) to commit the substantive offence of treason, secession, or subversion; or (b) to cause violence or public disorder which seriously endangers the stability of the state of the HKSAR would amount to sedition.
This proposal directly addresses the requirement in Article 23. But should we not at the same time consider whether it is still necessary to retain the old seditious offences?
The objection to them is their widely drawn language, invented by English lawyers some centuries ago, in an England which can now only be found in history books, and which is certainly very different from present day Hong Kong. An example would be "disaffection against the CPG or other competent authorities of the PRC or the HKSAR". Does that mean we cannot grumble about the Government? We are assured that this is not the case by reason of a legal argument set out in paragraph 4.8 of the Consultation Document. But should it be necessary to go into all that in the first place?
Another aspect of the existing law on sedition is the matter of seditious publications. Read all about it in Chapter 4 of the Consultation Document. Members of this club will find it very stimulating. But perhaps they can derive comfort from the fact that there is only one recorded case of sedition in the Hong Kong law reports, and that was in 1952, and the newspaper involved was the Ta Kung Pao.
I also discovered a relic of feudal England embedded in the laws of Hong Kong: misprision of treason. This is in paragraph 2.14 of the Consultation Document. I had to look it up because I did not know what it was. This gist of it is that if you know that another person had committed treason, you are under a legal obligation to disclose it to the proper authority within a reasonable time, if you fail to do so you commit an offence and are liable to imprisonment for 7 years and a fine.
This is existing law in Hong Kong, and this is so because pre 1997 Hong Kong law followed English law, even English law of considerable vintage. A feudal English monarch needed all sorts of draconian devices to keep his barons in line and his throne secure, but the modern concept of a citizen's duty to the state is perhaps different from that of a feudal vassal to his liege lord. At any rate, I certainly do not think misprision of treason was something ever contemplated by Article 23 of the Basic Law.
To sum up, I think we are required to enact legislation pursuant to Article 23, but I don't think we need to over-extend ourselves in fulfilling its requirements and now that we have a consultation going, the opportunity should be taken to review existing laws.
Constitutional Affairs Committee
The Law Society of Hong Kong