More Article 23 questions than answers

In the blink of an eye, roughly a quarter of the public consultation period promised for the Article 23 legislation is gone.

Not surprisingly, more questions were raised than answered in the first week.

Will the top officials tasked to advance the legislative program be able to answer all major concerns before the consultation ends on February 28?

Although officials have been trying their best to answer most legitimate queries, it appears there is still a long way to go before all the outstanding questions can be properly addressed.

Maybe Secretary for Justice Paul Lam Ting-kwok and Secretary for Security Chris Tang Ping-keung will have to cut short their sleep to double their work hours to field all questions if they are not going to extend the public consultation period.

During the week, Lam and Tang had been making comments on the crucial question of state secrets and whether or not public interest could be cited as defense in court.

Their comments were far from conclusive but it was still reassuring to hear them trying to take up the media's concerns about reporting on "state secrets."

It is hoped that a suitable solution can be found before a proposed bill is put forward to the legislature for passage.

Another area of concern emerging during the week of consultation has been the notable failure of the consultation document to mention penalties for the wide spectrum of offenses it contains.

As Lam spoke on the radio and TV over the past two days, he tried to fill this missing gap by drawing attention to overseas examples where those convicted of treason can be sentenced to life.

In particular, he stressed the common law practice pursued by the Hong Kong jurisdiction and how this is different from the civil law system of the mainland, where a minimum sentence is usually codified for criminal cases rather than a maximum sentence, as generally practiced in a common law jurisdiction.

It may be reassuring to hear that.

On one hand, Lam was trying to uphold a major feature of the one country, two systems political arrangement under which Hong Kong is expected to practice a legal system distinct from that of the mainland.

On the other hand, as Lam went on, he gave the impression that a maximum sentence would be provided in the final legislative bill even though, according to him, the national security law imposed by Beijing provides for a minimum, rather than maximum, sentence.

He explained that the national security law is a mainland legislation applicable to Hong Kong but that the Article 23 legislation is completely a local legislation.

In other words, it can be foreseen that the judges handling the first Article 23 cases will be saddled with the heavy duty of setting precedents for sentencing.

Will they be able to handle that? Let's keep our fingers crossed for now.

Meanwhile, there is also the jury question. In common law practice, the use of a jury is common in trials of serious criminal cases, whereas this may not be the situation with Article 23 cases.

So as one feature of the common law is stressed, should another feature of it be also emphasized?