A Study Of Article23of The Basic Law Of Hong Kong

Article23of the Basic Law of Hong Kong requires that the Hong Kong SARshould enact on its own to prohibit the seven listed acts which are detrimental tonational security and thus takes the responsibility of protecting national security.However, it is now more than eleven years since the Hong Kong SAR government’sfirst and only attempt to fulfill this responsibility. The problem of article23remainsan unresolved issue. This article deeply explores the background of the problem ofarticle23. By examining the history of drafting and implementing of article23, itreveals the key issues underlying the article23. They are national security, protectionof human rights and the autonomy of SAR. Then this article focuses on analysing theimplication and nature of article23pointing out that the jurisprudential basis ofarticle23lies in article31of the Constitution and Joint Declaration. The specialcontent of article23defines itself as a national security clause, an authorizationclause, an obligation clause and an autonomy clause, which urges the Hong KongSAR government to strike balances between defending national security andprotecting human rights and between fulfilling its constitutional duty and excercisinghigh degree autonomy. This article also intends to outline the Basic Law-centralisedhuman rights protection system in Hong Kong SAR and discussed the validility andeffect of various human rihgts law respectively. Afterwards, it demonstrates therelationship between article23and human rights law and analyses the requirements ofrestriction of human rights. Therefore, the justification and extent of restriction onhuman rights of article23are well clarified. Based on the previous comprehensivestudy, this article eventually proposes the approach to solve the problem of article23.It contends that the Hong Kong SAR government should face up to the risks of HongKong people’s fundamental rights and freedom which are derived from implementingarticle23and introduce into the legislative procedure the principle of minimumlegislation and high standards of human rights protection. Accordingly, the relevantprovisions regarding the national security should be under a serious scrutiny.Meanwhile, a flexible interpretation should be given to the “One Country, Two Systems” policy which requires understanding it within the context of article23.Considering the reunification between Mainland China and Taiwan, the long term goalof the “One Country, Two Systems”, the central government should deal with theproblem of article23cautiously and refrain from excercising its power ofinterference.