With Legislative Changes, Some Hong Kong Pro-Democracy Activists Fear ‘Article 23 Is Coming to Town’
Citizens protested in the public galleries of the Legislative Council against the change of house rule. The placards read: “Protect the Legislative Council”; “Do not turn it into that National People Congress”; “Today the house rules change, tomorrow Article 23 is passed”. Photo from inmediahk.net.
Santa Claus isn't the only thing coming to town, some in Hong Kong fear, after pro-Beijing lawmakers in the city's Legislative Council approved changes to procedural rules that aim to quash democrats’ filibustering of controversial legislation and expenditures for huge construction projects.
Hong Kong is a special administrative region of China with more economic and personal freedoms than the mainland, a set-up known as “One Country, Two Systems.” In recent years, however, Beijing has been pressuring Hong Kong to introduce new laws that strengthen the “One Country” part of the principle.
For example, the Hong Kong government is in the process of introducing a law that punishes those who deliberately disrespect the Chinese national anthem. That is because in October, the Standing Committee of the National People's Congress incorporated the mainland’s own restrictive national anthem law into Hong Kong’s mini-constitution, thereby compelling Hong Kong to pass local legislation on the matter.
There's another constitutional obligation looming for Hong Kong: Article 23 of its Basic Law, as the mini-constitution is called, requires that potentially troubling national security laws be implemented:
The Hong Kong Special Administrative Region 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, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.
“Article 23 is coming to town.” A political satire of the newly passed Legislative Council house rules by social media outlet 100 Most.
In 2002, the Hong Kong government proposed an anti-subversion bill to satisfy Article 23 that would have, among other things, criminalized seditious speech and could have even criminalized NGOs having connections with foreign groups. The effort was met with a massive protest, and the legislation process has been halted ever since.
Current Hong Kong Chief Executive Carrie Lam has stressed that the Legislative Council's recent procedural changes — meant to combat filibustering — are not connected to local enactment of Article 23.
Many people, however, believe otherwise. One viral image reflecting that concern was distributed by Facebook-based media outlet 100 Most. It shows Santa Claus framed by text that reads, “Article 23 is coming to town” in a riff of the classic Christmas song.
An important change to the understanding of quorum
So what rules were changed? On December 15, pro-Beijing lawmakers successfully modified the Hong Kong Legislative Council’s Rules of Procedure, the most controversial changes being:
1. the reduction of the quorum needed for the “Committee of the Whole Council” stage, from 35 to 20;
2. the increase of the number of lawmakers’ signatures needed to form an investigatory committee, from 20 to 35.
The details of how these changes affect legislative process are complicated, but to explain it in simple terms: The current Legislative Council has 70 members, with the pro-Beijing camp outnumbering the democrats. Without the power to veto, the democrats have instead delayed readings of bills in an attempt to influence lawmaking, either by reviewing the text of the bills clause-by-clause or demanding a headcount to confirm there is quorum, or both.
The Basic Law's Article 75 defines quorum as “one half of all its members,” or 35 according to current composition. If there are fewer than 35 legislators in the main chamber, the chair then suspends the section until the quorum meets the minimum. This tactic bought democrats time to raise public awareness of the issues at stake.
Pro-Beijing lawmakers, however, have slammed the filibustering as destructive. The procedural change reducing the quorum needed for the “Committee of the Whole Council” from 35 to 20 is meant to disrupt the democrats’ stalling; the pro-Beijing camp argues that the “Committee of the Whole Council”, which has up until now functioned as a meeting of the whole Legislative Council, should be understood as any other sub-committee which does not abide by Article 75's quorum requirement.
The second controversial change, increasing the signatures needed to form an investigative committee from 20 to 35, also seems directly aimed at democrats, who currently have no more than 30 lawmakers.
The changes ‘stand to gravely weaken the Council’s power to monitor the government’
Knowing that they would not be able to block the changes inside the Council, pro-democracy legislators and their supporters camped outside the legislature to call for public attention for five days between December 11 and 15.
On December 15, to stall the voting on the changes, a number of democrat lawmakers protested inside the chamber. Eleven of them were ordered by Council's president to leave, and the changes were passed.
A petition co-signed by a group of university professors and scholars argued that the changes will end up weakening the Legislative Council’s power to counter-check the government:
We object to the amendment proposals because once such amendments are passed, they stand to gravely weaken the Council’s power to monitor the government, already minuscule as they are, and allow the all-powerful executive authorities to escape legislative oversight even further, rendering a much increased chance of Hong Kong heading towards an authoritarian system.
Daniel Tam, an assistant to pro-democracy lawmaker Chu Hoi Dick, explained the technical details of how the changes will undermine the authority of the Legislative Council as a whole:
夾在二讀辯論與三讀辯論之間的全體委員會，是對二讀提出修正案的討論環節，結論會交由三讀辯論——如果法定人數降至20人，即10人贊成便可通過，決定三讀的法案文本。一條法例動輒可生效數十年，影響無數人的生活，然而只須1/7的立法會議員便可通過，作三讀的最後辯論。這顯然是嚴重傷害議會的內在邏輯和尊嚴
The Committee of the Whole Council is formed between the second and the third reading to review the bill, and the result of the revision is further deliberated in the third reading. If the quorum is reduced to 20, that means it takes only 10 lawmakers [actually, 11 would be the minimum majority of votes required] to decide on the actual text of the third reading. A law, which is likely to take effect for a few decades and affect Hong Kong people’s daily lives, is to be determined by 1/7th of the total number of legislators before it enters the third reading. Such changes definitely will harm the internal operations and the integrity of the Council.
The changes to the Council’s house rule could have a direct impact on a series of upcoming bills that potentially curb Hong Kong people’s rights and freedoms, university professor Sing Ming argued, quoting a comment from his friend on Facebook:
當立法會成橡皮圖章，任何大白象工程，超支，惡法等等，市民未知悉已在立法會快速通過，國民教育，國歌法和基本法23條，都無須在議會討論，想點立就點立，尤其是23條，經本地立法之後，以中共最近嘅肆無忌憚，將會人大再釋基本法23條，解釋為大陸國安法，以便香港實施尋釁滋事罪
Once the Legislative Council is turned into a rubber stamp, all large white elephant projects, over-expenditures, evil laws and so on will be passed swiftly even before ordinary citizens notice the issues. National education, national anthem law and Article 23 will not have due deliberation in the Legislative Council. In particular Article 23, when local enacted, could be written according to the liking of the Chinese Communist Party. Though reinterpreting the Basic Law that Article 23 is the Hong Kong version of the mainland's National Security Law, the crime of “provoking trouble” could come into existence in Hong Kong.
Pro-democracy legislators have asked the chair of the Legislative Council to seek clarification from the court on the interpretation of the Basic Law's Article 75 on quorum. If the changes are in violation of the Basic Law, all laws that passed under the new procedural rules would be voided.
Originally published in Global Voices.
