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.
Peter Lo
Chairman
Constitutional Affairs Committee
The Law Society of Hong Kong
October 2002