“一国两制”漫谈⑬ | 23条立法还能拖吗？

作者：萧平

XIAO PING

资深时事评论员

Can Article 23 legislation be further postponed?

香港回归祖国已经20多年，有一项必须履行的宪制责任却拖延至今，这就是基本法23条立法。由于这个缺陷，香港成为国家安全的一块短板。

It has been more than 20 years since Hong Kong returned to the motherland, but the special administrative region has yet to fulfill its constitutional obligation of enacting national security legislation according to Article 23 of the Basic Law. Because of this delay, Hong Kong remains a national security liability today.

中央给予香港“一国两制”特殊地位，是以实现和维护国家统一为前提的，没有哪个当政者会愚蠢到置国家安全于不顾。维护国家主权、安全和发展利益，维护香港长期繁荣稳定，是“一国两制”的初心和完整内涵。“两个维护”中，前者毫无疑问更重要，是后者的前提和保障。

The central government put Hong Kong in a special position by blessing it with the “one country, two systems” principle because it is conducive to achieving and upholding national unification. No sovereign state on earth is so foolish as to risk national security for the pleasure of some opposition parties. Safeguarding the nation’s sovereignty, security and development interests, together with ensuring the prosperity and stability of Hong Kong in the long run, is the original purpose and philosophy of “one country, two systems”. Without question, safeguarding the country’s sovereignty, national security and development interests comes before Hong Kong’s prosperity and stability because the latter cannot exist without the former.

23条规定特区应自行立法禁止危害国家安全的7种行为，与其说是授权立法，不如说是责成立法。2015年颁布的《国家安全法》明确要求，港澳两个特别行政区“应当履行维护国家安全的责任”。在国安问题上，只有“一国”之责，没有“两制”之分。23条不立法，“一国”都保护不了，何谈“两制”！

Article 23 of the Basic Law stipulates that the HKSAR shall enact laws on its own to prohibit seven types of activities harmful to national security. It is more an instruction than an authorization for Hong Kong to enact a local-version national security law. The National Security Law promulgated in 2015 clearly requires the Hong Kong SAR and Macao SAR to fulfill their responsibilities in safeguarding national security. The existence of “two systems” does not spare the SAR from its obligation to safeguard national security because it is a constitutional obligation. And there is no point talking about “two systems” when “one country” is in danger.

有人主张先立23条再搞“双普选”，此话不无道理，国安立法开天窗，普选的政治风险显而易见。但中央没有把两者挂鈎，全国人大已经给出“双普选”的时间表，这是中央相信港人的又一例证。无论是否普选，23条都要立法。基本法规定的责任是宪制责任，特区必须履行，而不能选择性履行。

There are people calling for completing national security legislation according to Article 23 of the Basic Law before implementing “dual universal suffrage” in Hong Kong. That is no doubt a good idea since “dual universal suffrage” could pose a political threat in the absence of a law safeguarding national security from Hong Kong’s end. However, the central government has not tied the two together, and the National People’s Congress Standing Committee has already announced a timetable for implementing “dual universal suffrage” in Hong Kong. This is yet another example of the central government’s confidence in the people of Hong Kong. The truth is that national security legislation according to Article 23 of the Basic Law must be fulfilled with or without “dual universal suffrage”. The HKSAR cannot choose not to honor this constitutional obligation.

2003年特区政府尝试23条立法未成，一晃过了17年。近年来“港独”思潮冒起，一些政治组织和政治人物与外部势力频繁勾联，成为特区动荡之源，也严重危及国家安全，突显了23条立法的必要和紧迫。中共十九届四中全会以中央决定的方式，明确要求“建立健全特别行政区维护国家安全的法律制度和执行机制”，再度表明了中央的决心。国安堪虞是最大的制度漏洞，23条立法不能无限期拖下去。已有学者指出，如果香港迟迟不能完成23条立法，不排除中央以其他方式解决这个问题，中央有这个权力。

It has been 17 years since the SAR government’s first attempt to enact a national security law according to Article 23 failed in 2003. As a result, Hong Kong independence advocacy has risen in recent years; while a host of political groups and figures have been busy conspiring with hostile forces overseas to gravely threaten national security as well as jeopardizing Hong Kong’s interests, making national security legislation according to Article 23 all the more urgent. The 19th Central Committee of the Communist Party of China adopted a decision at its fourth plenary session on Oct 31 requiring the enactment and improvement of national security laws and related enforcement mechanisms in the two SARs. It is yet another step in emphasizing the central government authorities’ resolve in and commitment to safeguarding the country’s sovereignty, national security and development interests. There is nothing more worrying than vulnerabilities in national security, which is why national security legislation according to Article 23 cannot wait indefinitely. Some experts in constitutional affairs have pointed out that if Hong Kong cannot fulfill its constitutional obligation in safeguarding national security, the central government will plug the loophole one way or another because it has the right and means to do so.

担心国安立法侵蚀人权是多虑了，国安法针对的是犯罪行为。何况，无论国际公约还是人权法案都写明，人权与自由不能凌驾国家安全或公共秩序。香港现有法例中也有一些涉及国安的规定，但这些法例未能完整覆盖23条的范围，无法替代23条立法。

Hong Kong’s existing laws also contain provisions related to national security. In 2018, the SAR government banned the separatist Hong Kong National Party in accordance with the Societies Ordinance. However, these existing laws are not enough to replace a national security law tailor-made to meet the requirements of Article 23 of the Basic Law.

当年邓小平对“不一定在香港驻军”的说法发了脾气，强调驻军是主权的象征，也是为了防止香港“发生危害国家根本利益的事情”。不能不佩服邓小平的先见之明，他早就判断香港会出现“破坏力量”。如果“香港变成一个在‘民主’的幌子下反对大陆的基地”，“那就非干预不行”。首先是特区政府要干预，如果发生动乱，驻军也会出动。有人担心出动驻军就意味着“一国两制”终结，其实没那么严重。平乱和国防一样，都是驻军职责所在。香港恢复稳定，驻军重回军营，“一国两制”可以再上正轨。

When some people suggested back in the day that China may not need to maintain a military presence in Hong Kong, late Chinese leader Deng Xiaoping responded rather angrily and emphasized that a military presence is a symbol of sovereignty and a means to preventing “things that will harm the country’s fundamental interests” from happening. Deng’s wisdom and foresight were undeniable in terms of “expecting the worst”. He decided that, if Hong Kong were to become a subversive base against the mainland in the name of “democracy”, it would be impossible for Beijing not to intervene. When necessary, the SAR government should be the first to act in the name of national security, and the People’s Liberation Army Hong Kong Garrison may also lend a hand in stopping violent unrest. Some people are worried that dispatching PLA troops would signify the end of “one country, two systems”. Such concern is unnecessary because quelling social unrest is the responsibility of the armed forces around the world just as national defense is. The PLA Garrison in Hong Kong is tasked with such missions as well as national defense and will return to its barracks as soon as peace and order is restored. Then the exercise of “one country, two systems” will be back on track.

原文刊登于4月23日《中国日报香港版》