“Secession” and Art. 23: some thoughts on John Tsang’s manifesto

After a month or so of being in limbo following his resignation, John Tsang launched his bid for Chief Executive on 19 January 2017 to a surprisingly warm reception. On 4 February, prior to the actual unveiling of his manifesto, it was reported that Tsang had raised more than HK$3m through crowdfunding – making some comparison to Bernie almost inevitable. If Carrie Lam is supposedly the Beijing-approved Candidate-of-Choice the way Hillary was crowned months before Bernie or anyone appeared on the scene, then John Tsang and his affable public persona is (to an extent) comparable to Bernie: underdog, slightly scruffier (well, at least based on the moustache) and much more “with the people”. At the very least, Tsang has yet to run into major gaffes like not having toilet paper and having to cab to his old residence, or not understanding how an Octopus card works.

Putting aside all other considerations of his electability, chances and general policy positions, the thing that interested me most was Tsang’s specific inclusion of Art. 23 in his manifesto, launched on 6 February. Some may say that the first attempt by the Hong Kong government to implement Art. 23, which mandates enactment of national security laws prohibiting treason and the like against the PRC, and the subsequent backlash (see: 2003 protests which supposedly attracted half a million people to take to the streets), was the most visible and memorable start to activism by the Hong Kong people – a start to things like the protests against introducing Moral and National Education in 2012, and of course the Occupy Central movement.

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The significance of the Art. 23 protests was that it worked: it pushed Regina Ip to her resignation and forced the government’s hand, requiring them to stall the bill and leave it untouched for – as of 2017 – 14 years. Donald Tsang and CY Leung did not attempt to touch the pile of flaming crap, and probably for good reason: it was political suicide given the clear indication of disapproval from the populace, and when there were other (seemingly) more pressing social issues at stake, Art. 23 was not really a priority. After all, while Hong Kong grumbled on a daily basis about all things Mainland China related, it wasn’t like the city was brewing hot pockets of terrorists about to steal state secrets and sell them to Taiwan or subvert the Chinese government in a way that actually imperilled its national security. A few vocal protestors here and there were inevitable and probably acted as necessary vehicles for letting off “societal steam”, as it were. Leung Kwok-hung (“Long Hair”), for instance, was belligerent and rather rude, but he was hardly a  traitor per se. And especially in light of events like the Chinese New Year “riot” in 2015 it’s obvious that without some way of allowing dissent, things could only degenerate into chaos – which is probably not something China wants.

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But Tsang’s inclusion of Art. 23 in his manifesto – in its own standalone section (albeit Section 5, so semi-buried within other details) – might be the start of something new. Ironically, running against him (though probably in as bad as, if not worse, of a position as him in terms of chances of winning) is Regina Ip, the Poster Child for Art. 23. Art. 23 itself clearly mandates and requires the enactment of national security laws, which ought to criminalize…secession. The one thing that jumped out at me was how this fits into the new political scene, which is dramatically different from that 14 years ago: the addition of new players like the “independence movement” makes the national security laws more necessary, perhaps; at least they are have a much more obvious object. To Tsang’s credit, he does qualify the push to legislate by stressing the need for comprehensive consultation and reaching out to concerned parties (naming journalists specifically, which is good for press freedom, I guess). But he does state point-blank that the question shouldn’t be whether we should legislate, but should be about content and scope – it’s a given that Art. 23 has to be implemented.

Granted, those who reject Art. 23 absolutely are probably talking to a wall. If it’s important that Hong Kong remains constitutionally sound then the easiest, and most important thing, is probably to stick to the constitution we do have i.e. the Basic Law. To refuse to accept that Art. 23 requires the enactment of these laws is tantamount to denying the status and obligations contained in the document – either these people advocate for actual amendment of the Basic Law to remove or qualify the Art. 23 obligation, or they accept the premise and move to a consensus about limiting the scope and/or ensuring clarity in the offences created under the guise of national security protection. It seems to me that a way forward out of this bipartisanship and fragmentation is to focus on the latter approach – I’m much too pessimistic (and practical) to think that amendment regarding Art. 23 is ever going to happen. And it’s probably true across the board that most (if not all) countries have some form of national security law in their statutes. Treason or subverting the state is just not okay, and it doesn’t matter whether one is in a “known” democracy like the UK or some not-democracies – North Korea, for instance. So in principle there shouldn’t be a problem to having national security laws in the books: if someone goes around trying to blow up Beijing and assassinate everyone in power, that’s definitely not okay and arson and/or murder might not be strong enough labels when he is prosecuted.

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Another point in Tsang’s favor is that, compared to 2003, when the laws were abstract and hence much less clear in their scope and object, the politics of 2017 give better grounding to whatever legislation is sought to be passed. However, this is probably the Gordian knot: it would be highly problematic if laws were sculpted in a way obviously targeted towards particular individuals or specific conduct (e.g. advocates for Hong Kong independence) – on one hand, that does (probably) fall within the “secession” point in Art. 23. As Bernard Chan (member of the Executive Council) wrote following the November NPCSC interpretation in the oath-taking scandal, national sovereignty is the bottom line. A state is not going to stand by and let parts of its people go off and declare independence, and while it seems like the only solution going forward to a frustrated Hong Kong populace, it’s evident that geopolitics around the world show the same crackdown towards acts of secession: see Catalonia, Quebec, even Scotland. Whilst it’s true that Spain, Canada and the UK in general have not arrested all the pro-independence campaigners and thrown them into jail, it’s not been like the countries have just let the areas secede without intervening to try to halt the process. Why should China be any different? Independence is clearly not a very pragmatic way forward, and the real question to me is how far Art. 23 legislation will go in targeting the pro-independence movement. Is talking about, or advocating for – as per Nicola Sturgeon and co. with the SNP, which was set up with a goal of fighting for Scottish independence, i.e. somewhat similar to Youngspiration or the Hong Kong National Party – [random note: why does Youngspiration not have a website? Exactly how unprofessional is it to have an expired hosting account?] – independence going to be an act of secession or subversion?

How Art. 23 can balance freedom of speech concerns will be the biggest problem facing Tsang if he gets to implement his manifesto. He has been lauded for not mentioning the “831 Decision”, which involved the PRC laying down guidelines for democratic reform; how far this can be taken is doubtful, because it seems that rhetoric has been Tsang’s major calling card so far – he knows how to play to the people (which is good, as a politician) but practically whether he can just ignore the Decision in his attempts to restart democratic reform is still unknown. One of the most important things, then, is for the Hong Kong public to not lose sight of what is important and what is at stake. I’m all for compromise and moving to the middle ground – given that Woo Kwok-hing is really not in the race (and because I’m not entirely sure what he stands for or who he stands with, apart from the major props coming from his position as an ex-judge), I’m reasonably keen on Tsang as a candidate for CE since he has quite a bit more legitimacy owing to his popularity with the people. But compromise and pursuing the moderate road is not ignoring the substance of Tsang’s policy. It will be a worse blow to Hong Kong politics if a seemingly likeable / credible politician does get to be CE and he smilingly manages to push through laws which end up hurting our civil liberties more than anything Regina Ip could have done, just because people seem keener to turn a blind eye towards Tsang.

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I hope I can be optimistic; I want to believe Tsang speaks from a good place and genuinely wants to bring “Trust, Unity, Hope” as his campaign asserts. But whether he’s all bark and no bite – or worse, whether his bark conceals his bite – that is for us to find out: and it won’t hurt to be a little more (constructively) critical, at all times, to all things, for all candidates. Regina isn’t very friendly-looking (if not downright condescending); Carrie comes off as lacking any common sense, and the judge is just a little irrelevant – but it would really suck if John turned out to be the most dangerous one of them all.

I hope you prove me wrong.

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