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HK’s Article 23: clarity or confusion?

The introduction of national-security legislation under the aegis of Article 23 of Hong Kong’s Basic Law merits careful analysis, devoid of emotive reactions.

The statement that the provisions of Article 23, as with all other Hong Kong laws, will be subject to the common law, comes as a significant reassurance to lawyers practicing in the jurisdiction.

Every jurisdiction makes statutory provision for what is loosely termed national security, and as with any legislation, the devil lies in the detail.

Taking the United Kingdom as a point of reference, despite having no written constitution, the common law evolved to incorporate the concept by way of the subject’s duty of loyalty to the sovereign.

Treason, at its core, is a crime that encompasses betraying one’s country, especially by attempting to kill or overthrow the sovereign or government.

Historically, however, Henry VIII had those he suspected of sleeping with his wife charged, convicted and beheaded for treason, demonstrating how administrators, regardless of their constitutional description, will bend the words to cover whatever they desire.

Governments of every description will happily invoke the emotive language of treason to suit their own purposes. As defense counsel, I once represented a teenager who, standing in the crowd, fired a starting pistol within the sight of Queen Elizabeth at the Trooping of the Color; not only was he charged and convicted of treason, the attorney general prosecuted him, in person, and the Lord Chief Justice himself presided over the trial.

The Treason Act of 1842 provided that “if any Person shall wailfully … discharge or cause to be discharged … any explosive Substance or Material near to the Person of the Queen … with Intent … to