South China Morning Post, 13 November 2002

Why it was wrong to consult Beijing on Article 23



By Martin Lee

Even before the proposals to implement Article 23 of the Basic Law were published for consultation, many legislators were told by Secretary for Justice Elsie Leung Oi-sie that Beijing had been consulted. After the publication, legislators were told by Secretary for Security Regina Ip Lau Suk-yee on October 28 that a consensus had been reached with Beijing on both the timing and general principles of the proposed legislation before it was even finalised.

Miss Leung tried to justify the prior consultation with Beijing in a speech to the Newspaper Society of Hong Kong on October 17. She said: ''Some people are strongly against our act of seeking the central government's opinion on the proposals to implement Article 23 of the Basic Law, on the grounds that it amounts to undermining the principle of 'one country, two systems' ... we seek the opinion of the [central government] because what Article 23 protects is national security. It is also necessary for the SAR government to avoid the possibility of the return for amendment of any law reported to the Standing Committee of the National People's Congress because of its failure to conform with Article 23 of the Basic Law. Moreover, we consulted the [central government] only on the major principles, not the detailed legal proposals.''

Her explanation showed Miss Leung has failed to understand how the Basic Law should work to protect the high degree of autonomy given to the SAR, including executive, legislative and independent judicial powers.

Article 17 says that Hong Kong ''shall be vested with legislative power. Laws enacted by the legislature ... must be reported to the Standing Committee of the National People's Congress for the record. The reporting for record shall not affect the entry into force of such laws.

''If the Standing Committee of the National People's Congress, after consulting the committee for the Basic Law of the Hong Kong Special Administrative Region under it, considers that any law enacted by the legislature of the Region is not in conformity with the provisions of this law regarding affairs within the responsibility of the central authorities or regarding the relationship between the central authorities and the Region, the Standing Committee may return the law in question but shall not amend it.

''Any law returned by the Standing Committee of the National People's Congress shall immediately be invalidated. This invalidation shall not have retroactive effect unless otherwise provided for in the laws of the Region.''

Article 18 says that, with a few exceptions, ''national laws should not be applied in the SAR''.

Article 23 says: ''The SAR 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.''

These show clearly that the intention is to leave the enactment of the territory's laws in the hands of the SAR (as opposed to the government) through Legco. If the central government had wanted such important laws like treason and subversion to be enacted by the National People's Congress, it could easily have done so by including such laws in the exceptions under Article 18.

Not only was that not done, Article 23 states categorically that these laws shall be enacted by the SAR.

The most important point, which seems to have been missed by Miss Leung, is that the central government, or any other organ of power in the mainland, is not meant to be consulted at all, either by her or anyone else in the SAR government.

The whole idea of the Basic Law articles is that the SAR, through Legco, shall enact all laws in the territory without any prior consultation with Beijing. And every law passed by Legco will take immediate effect, unless it is specified that it will take effect later. The only control, which is spelled out clearly in Article 17, is to be exercised by the Standing Committee of the National People's Congress, and not, as mentioned repeatedly by Miss Leung by the central government, which she said she had consulted.

Further, and this is the crux of the matter, such control can only be exercised subsequent to the enactment of the laws by Legco, and not prior to it. Therefore in exercising our role as legislators, we do not and should not be influenced by the views of the central government, or even the Standing Committee of the NPC. Nor should the SAR government.

Otherwise, legislators would be acting contrary to the intention of the Basic Law, and the interests of the people who elected us.

In seeking ''the opinion of the central government even prior to the finalisation of the proposals'' the SAR government has admitted to having unilaterally and unjustifiably sacrificed legislative power to enact the laws in Article 23 without the consent of Legco or the people of Hong Kong.

This was due, perhaps, to Miss Leung's inability to distinguish between the Standing Committee of the NPC and the central government, between the SAR and the SAR government, and, above all, her inability to understand the importance of preserving the high degree of autonomy under the policy of ''one country, two systems''.

Martin Lee Chu-ming is a former member of the Drafting Committee for the Basic Law. He is a directly elected legislator and chairman of the Democratic Party.

| Home | Meet Martin Lee | About the Democratic Party | Press Releases | Recent Articles | District Activities | July 1 Manifesto | Photo Archives | Downloadable | Constitutional Documents | Related Sites | Search | FAQ | Feedback |

    Copyright © 1999 The Democratic Party. All Rights Reserved.

    Next Media Group Management Ltd. owns the copyright of some featured photographs, the use of which for commercial purposes will result in legal prosecution.