Thursday, March 1, 2018

Reviving Article 23: Two-Part Story on Hong Kong's National Security Debate (Hong Kong Free Press)

Elson Tong (JD candidate)
17 Feb 2018
Hong Kong Free Press
“As long as we work on the basis of ‘loving the country and loving Hong Kong’, there will always be hope,” said the city’s outgoing Secretary for Security at a dinner in Wanchai’s Grand Hyatt, organised by various pro-Beijing trade unions. “But sometimes I see an unhealthy wind blowing across society. People mix up what is right and what is wrong, what is black and what is white. I even sense a Cultural Revolution-era mentality and language in some of the media.” The speech was not delivered in 2017 - but in the pivotal year of 2003...
     With these existing laws in mind, scholars such as Hong Kong University professor Johannes Chan are sceptical as to whether – by asking Hong Kong to “enact laws” – Article 23 really means that the government has to table a fresh bill.
     “We shouldn’t say that Hong Kong has failed to fulfil its constitutional duty under Article 23. We should ask whether existing laws already do so,” Chan told a conference last March...
     At the time, Regina Ip and Elsie Leung respectively led the Security Bureau and the Department of Justice. But Hong Kong University professor and prosecutor Simon Young told HKFP that colonial-era British officials, like solicitor-general Robert Allcock, were more involved as hands-on drafters for the bill. ... Click here to view the full article.

"Reviving Article 23 (Part II): Old wine in new bottles for Hong Kong’s national security debate"
Elson Tong (JD candidate)
18 Feb 2018
Hong Kong Free Press
In December 2017, Hong Kong’s pro-democracy lawmakers – who were six members short after some were ousted by the courts – fought a lost cause to prevent their pro-Beijing colleagues from changing the legislature’s house rules. Henceforth it would become much harder to filibuster controversial bills. ...
     Hong Kong University law professor Eric Cheung speculated that the motive for this document was to strip Hong Kong courts of their oversight of the arrangement. He added that Beijing may do the same thing to stop future Article 23 national security laws from being judged unconstitutional for any violations of protected rights and freedoms...
     Mainland constitutional law professor Fu Hualing told attendees that in pushing for a national security law, Beijing’s aim is now to suppress Hong Kong’s pro-independence movement.
     “The Falun Gong, for example, disappeared entirely from the field of debate,” he told HKFP. “I think Hong Kong will continue to be a foundation for activities within mainland China… like civil society development, working with NGOs.”...
     A national security bill only requires the support of a simple majority in the legislature to be voted into law. The pro-Beijing camp has always obtained over half of the seats. Therefore, few legislative obstacles exist to the passing of a law that would criminalise mere speech.
     However, Hong Kong University criminal law professor Simon Young told HKFP that the courts can refuse to enforce vague or otherwise unconstitutional laws.
    “The courts could say that the provision is so vague that it violates the principle of legal certainty… because it gives no indication to anyone what the law is, and you can’t regulate your conduct accordingly… But that rarely happens.”
    “The second thing that they can do is [to say] that there are provisions or aspects of the law that violate specific constitutional rights, whether it’s the freedom of expression or the presumption of innocence.” A judge would then either strike down the provision, or employ more lenient legal tests favouring the accused...
     His colleague Albert Chen told attendees at the December conference that under Article 17 of the Basic Law, the National People’s Congress Standing Committee (NPCSC) might invalidate a Hong Kong security law and ask for new legislation if it deems the provisions unsatisfactory...
     Click here to view the full article. 

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