South China Morning Post, 01 October 2002

Officials must reveal true colour of Article 23



By Martin Lee

At the meeting of the Legislative Council's joint security and legal panels on the government's proposals to implement Article 23 of the Basic Law last Thursday, Secretary for Security Regina Ip Lau Suk-yee was urged by legislators to spell out the actual provisions which the government wishes to enact in a white bill, so that the public could be properly consulted on its proposals. She said categorically that the government would not do so.

''What is wrong with the blue colour?'' she asked. ''People can read it even if it is [printed] on blue paper. As for the colour of the paper, I would have thought that the most important thing is the content and not the colour.'' She also said that the present method was the most efficient one, and that ''time is precious''.

Mrs Ip added that ''taxi drivers, restaurant waiters and McDonald's staff'' would not study the provisions of a white bill in detail, and only experts such as legislators and academics would do so. To those who do not know the difference between a white bill and a blue bill, Mrs Ip would seem to be extremely sensible.

But Mrs Ip was being disingenuous. She could not fail to understand that every bill presented to the Legislative Council for enactment is, by convention, always printed on blue paper, whereas a bill printed on white paper is not intended for enactment, but for consultation purposes only. The advantage of adopting the white bill procedure is that while the public knows exactly what is being proposed, the government also keeps an open mind and will be receptive to suggestions for change.

As for Mrs Ip's gibe at taxi drivers and restaurant waiters, she seemed to have forgotten that the first words of the consultation document published both in English and Chinese are: ''We welcome your views. The government has always attached great importance to comments from the public.'' Are the public now told that unless they are experts, their views are not welcome, although they are all going to be affected by some of those draconian proposals in one way or another?

But then, even the people described as ''experts'' find it impossible to have a meaningful discussion when the specifics are deliberately withheld in these proposals, although Mrs Ip agreed that ''the devil is in the detail''. As to timing, we all know that the most efficient and time-saving way to govern is not to consult at all, as is done in the mainland. But Hong Kong has been extremely stable politically ever since becoming a Special Administration Region on July 1, 1997, without any legislation under Article 23 at all. So why can the government not take a few more months to inform the public fully before consulting them in a meaningful way by means of a white bill?

After all, the proposals affect everyone and only fools will say that these proposals do not affect them. It is, of course, true that 99 per cent of the Hong Kong population will never be traitors, or subvert the central government, or steal state secrets. But do they know that the new proposals will have the effect of eroding the freedom of the press, the freedom of association, of assembly, of procession and of demonstration - all of which are vital to any modern and vibrant society such as Hong Kong? Do they know that if the freedom of the press goes, then no other freedom is safe? Do they know that a community which does not enjoy these freedoms will produce people without creative or independent minds? Do they know that this lack of creativity and independent thinking is causing concern for the governments in Singapore and China?

So, if you want your children and their children to grow up without creativity, please support the proposals. At the same meeting, Mrs Ip admitted, when pressed, that the central and SAR governments have reached consensus, not only on timing (calling for the whole consultation and legislation process to be completed by July 2003), but also on content, though in principle only.

Mrs Ip's revelations raise a number of important questions: why was Beijing consulted or even approached, since Article 23 states that the HKSAR shall legislate on its own? Who decided to approach Beijing and why? And what exactly has been agreed?

These questions must be answered by the government, and answered at once, for the people of Hong Kong are entitled to know whether the consultation is a sham and its result a foregone conclusion. But there is no reason to consult Beijing at all. Hong Kong is given complete power to legislate ''on its own'' in relation to the seven matters specified in Article 23. This certainly covers both the decisions on when and what to legislate.

The power to enact and extend national laws to Hong Kong is reserved to Beijing under Article 18, but these laws exclude treason, secession and subversion etc.

Article 17 of the Basic Law provides that every law passed in Hong Kong shall be reported to the Standing Committee of the National People's Congress ''for the record''. If it decides, after consultation with the Basic Law Committee, that a certain law passed is ''not in conformity with the Basic Law'', it ''may return the law'' without amending it.

So if the Legislative Council were to enact a law on treason, secession or subversion which is consistent with the Basic Law and the common law system which continues to apply to Hong Kong, though not consistent with the Chinese Constitution or the laws of China, Beijing must accept it. Why, then, was it necessary to consult Beijing at all?

The government must therefore fully answer the questions raised above, and undertake to consult the public, not just the experts, by way of a white bill at the end of the present consultation exercise.

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