Historic Obligation

The controversial National Security (Legislative Provisions) Ordinance (NSO) is one last unavoidable jigsaw piece to be fitted into place before the process of reunification of Hong Kong into China is finally complete. As expected, this controversial piece of legislation is seriously testing the true readiness and the faith of our citizens in the whole historic episode.

The Bill seeks the co-operation and understanding of the citizens of Hong Kong to protect the national security of the motherland. Although this concept of ‘national security’ is foreign to Hong Kong as a former colony, similar and, in many instances, tougher national security laws are commonplace in other nations. The powers of national security laws the world over are often draconian and infringes on many aspects of human rights. It is still considered necessary because of the extremely serious nature of the crimes. In fact, all legislation restricts individual freedoms to a certain degree. The extent and degree of restrictions are normally commensurate with the seriousness of the crime and the damage it can inflict on society. The lawmaking body of the land and eventually its Courts are often required to strike a sensible balance on behalf of the whole community.

With a long history of internal civil unrest, the Chinese Authorities have always treated matters of national security very resolutely. Its worst fear is that Hong Kong, with its wide international links and an unguarded border would become, in the long term, a base for rebellion and revolution against the national Government. After all, this has actually happened a few times before in our history and, therefore, it is a possible threat that cannot be ignored. If the matter is to be considered at a national level i.e. the National Peoples Congress (NPC), and if the matter is to be put in the context of ‘protecting the sovereignty, territorial integrity, and unity and national security’ for the 1.5 billion Chinese nationals, the need for this law would be so obvious that the outcome is inevitable.

On the other hand, Hong Kong never needed a law like this before 1997 as we could never pose a real threat to our then sovereign, the United Kingdom. Nonetheless, in the eleventh hour of their departure from Hong Kong, the British Government skillfully embedded many elements of national security legislation into a host of existing laws. This has provided the basis of some claims that the proposed separate legislation of the NSO is unnecessary.

As a member of the Preparatory Committee of the HKSAR, I knew that the Central Government of China would not accept this arrangement as a permanent solution. The initial reaction of the Chinese Authorities was to follow the example of the electoral arrangements and to break the ‘through train’. It would then replace the old legislation with new ones made on our behalf either by the NPC or the Provisional Legislative Council as a symbol of asserting sovereignty. However, after some persuasion, the plan was abandoned on the grounds that the matter was highly sensitive at the time of transition when confidence levels were probably at their most fragile. In any case, there was no demonstrable urgency at the time. Instead, Article 23 of the Basic Law stated clearly that Hong Kong would undertake to legislate to protect China’s national interests on its own. The move was hailed as a diplomatic success by all sides.

The Contentious Issues

The Hong Kong Government has decided that it is the right time to make a move. On 24 September, 2002 it launched a wide consultation on how to legislate against ‘treason, secession, sedition and subversions etc.’ to fulfill its constitutional obligation. The process immediately sparked off wide controversy as its implications on individual freedoms became apparent. During the ensuing process, the Administration made numerous concessions time and time again to water down the impact of the draft bill. Some LegCo members now call it a ‘toothless tiger’ when compared to similar legislation in North America and Europe. In many areas of the Bill, it has actually reduced the scope and application of the existing laws. However, the Bill still contains a number of contentious issues which have attracted spirited opposition, notably from the barristers, the media, human rights activists and the Catholic Church.

The main areas of unresolved debate are focused on the following:

1. The novel concept of ‘proscription of organizations endangering national security’ and the method of its implementation. Despite the built in check and balance (i.e. appeal to the Courts of Hong Kong) it is still seen as having weakened the autonomy of the HKSAR. Some members of the legal profession believe that the relevant laws can be built into our own legal system without giving the Central Government express legal rights to proscribe the concerned organizations. They consider that the proposed procedures would add an element of uncertainty and cause possible disputes in the future on how China would proscribe those organizations. Others in support argue that Hong Kong’s position as part of China is unique and hence this kind of proscription law is needed. They also believe that the proscription rules will be based on the laws of Hong Kong which operate under a common law jurisdiction and adequate safeguards of independence have already been provided.
2. The wide emergency powers for the police to search without warrant has also cause concerns. In response, the Administration had pledged that the authorization must come from the rank of Assistant Commissioner or above and the search and seizure of journalistic materials must under all circumstances be authorized by court warrants. It should be noted that many nations have similar legislation and police powers.
3. The allegedly vague definition of what constitutes official state secrets and the handling and publication of potentially seditious materials have also caused concerns. Some accountants are even concerned with the possible limitation on the flow of financial information. Others argue that similar laws are common place elsewhere and, arguably, the proposed legislation is comparably more relaxed.

In the early stages of the consultation and the legislative exercise, accountants that I regularly come into contact with took little interest in the Bill. Most regarded the Bill as having little, if anything at all, to do with their work and daily lives. The legislation for national security is also an understandable objective and can be regarded as an unavoidable price to pay for the sovereignty, territorial integrity, unity and national security of the motherland. However, as the legislative process sped on in undue haste, and the Administration increasingly took on an uncompromising attitude in the face of the opposition, concerns began to grow.

It is true that we are seeing politics at its worse in this Bill. The rough handling by the Administration and the deliberate tussling and delaying tactics by some opposition members of LegCo throughout the process has wasted much valuable time which has prevented the Bills Committee from doing a full and complete professional job in examining the complex Bill in detail. In the end, the two sides are actually getting further and further apart instead of closing the expectation gap. This has made an already difficult job doubly difficult.

The Administration now requests a vote to take place at the LegCo sitting of 9 July. The debate is expected to go on for days before the final vote. Some accountants have expressed a wish that I come out clearly and strongly in support of this Bill. Others have requested me to oppose the Bill and to lead a demonstration against the Government on 1 July, 2003. A few have asked me to conduct a referendum of accountants to decide on the matter. I am grateful to the Council and the Secretariat of HKSA to have agreed to help me out to conduct this massive all members survey.

Pros and Cons of Voting for the Bill

For your consideration and against the background outlined above, I would like to set out in summary some of the views that I have heard.

The supporters of the Bill:

1. National security is our legal obligation under the Basic Law that must be satisfied. We should be proud of being part of China and accept its new house rules. The present package, under a common law jurisdiction, is already very favourable relative to similar laws elsewhere and in particular, the China mainland;
2. The current debate is no longer productive, the earlier we settle this divisive debate and begin to focus on the more pressing economic issues and move on; the better it is for Hong Kong. After all, the legislation is unlikely to affect law abiding citizens;
3. The revised Bill has already received muted acceptance from the great majority of international business communities and there is evidently no loss in business confidence;
4. The final Bill should be judged on its own merits and the ‘product’ should be considered separately from our distaste of the rough handling process;
5. If we drag on this divisive debate, the community may split even further and might cause even more damage to Hong Kong in civil unrests and loss in business confidence. The best thing to do is to bite the bullet and see it through quickly;
6. Many justifiable criticisms are capable of remedy by passing the appropriate amendments proposed; we should still support the objective of the law which is to fulfill our historical and constitutional obligations;
7. The present package may not be ideal but it is already the best deal possible to achieve in the circumstances. We should be mindful that other western nations do have tougher national security laws and if Hong Kong fails to provide an acceptable package to China, we risk the imposition of even tougher laws later.

Those who oppose the Bill:

1. They believe that the Bill will inhibit human rights and pose a threat to the free flow of information;
2. The Bill is being processed with indecent haste and there is still no demonstrable need and urgency for the legislation;
3. They trust the Democrats and the barristers more than the present Administration;
4. The Bill is still too ambiguous and hard to understand. The Government has not yet done a proper job in explaining it to the public. More time is therefore required for the community to understand its full implications;
5. We risk losing the political autonomy of Hong Kong;
6. Hong Kong might become a police state in future;
7. The Bill can pose a threat to the freedom of speech by self inhibition.

Finally, some members have simply asked me to vote according to my conscience. To me, however, it is my duty, as your political representative and a professional, to judge what is the right balance for the common good of our society. If I have done my job in representing you in good faith, then my conscience is clear.