Far East Economic Review 2002/10/10

Hong Kong Legislation Reflects Beijing's

Worries

By DAVID LAGUE IN HONG KONG

AS HONG KONG and mainland leaders gathered to

celebrate China's October 1 National Day with

patriotic parades and flag raisings, the April 5th

Action Group swung into action. Chanting through loud

hailers, about 10 members of the political agitation

faction, known for its virulent opposition to China's

ruling Communist Party, marched on the city waterfront

in a bid to disrupt the ceremony.

They carried a coffin daubed with slogans. One read:

"End One Party Rule." When police moved in to block

their path, a Chinese flag went up in flames.

Until now, protests like this in Hong Kong have been

tolerated under Chinese rule, but there are fears that

under tough new laws outlawing treason, secession,

sedition and subversion they could become serious

crimes carrying heavy penalties. Senior government

officials dismiss these fears and insist that the

freedoms that have been the foundation of Hong Kong's

economic prosperity will remain intact.

"Subversion does not cover groups that chant slogans

only," said Hong Kong's tough-talking Secretary for

Security Regina Ip on September 24 when the government announced that the new laws would be enacted by July next year.

Police may lay charges over the National Day protest

under laws that ban desecrating the Chinese flag, but

it is the proposed national security laws that are

alarming civil libertarians, pro-democracy parties and human-rights activists.

"Basically, we don't think there is a need to enact

such laws," says Yuen Mee-yin, the executive director

of the Catholic Church's Justice and Peace Commission.

"The existing laws can cover these things."

Beijing disagrees. It has demanded that Hong Kong

enact the tougher national security statutes that will

carry maximum penalties of life imprisonment. When investigating most of these crimes, the police will have the power to search homes and offices without a warrant. With the support of pro-Beijing and pro-business factions in the Legislative Council, the laws are certain to be passed.

Critics argue that the Hong Kong government already

holds sweeping powers to protect national security

through criminal, official-secrets and societies

statutes, along with wide-ranging police powers

inherited from the colonial British.

They fear that the new laws combined with grey areas

in Hong Kong's mini-constitution, the Basic Law,

covering the jurisdiction of local courts, are a legal

Trojan horse. Once parked in the statutes, they claim,

the new laws will give Beijing the power to crush any

political dissent and exert absolute political control

over the former British colony whenever the mainland

leadership feels threatened.

There are also fears that the new laws will allow the

Hong Kong authorities to ban organizations like the

Falun Gong spiritual movement. Another group that

could find itself in Beijing's sights is the Alliance

in Support of Patriotic Democratic Movement in China.

Beijing has labelled this group "subversive."

Civil libertarians claim there has scarcely been a

single incident since China resumed control over Hong

Kong in 1997 that smacks of a challenge to the

mainland's sovereignty or national unity. "There is no

sedition or subversion that I have seen around here,"

says Michael Davis, a constitutional legal expert from

Hong Kong's Chinese University.

However, it seems that it is not events since the 1997

handover that are uppermost in Beijing's mind but the

upheavals of 1989 when more than a million people took

to the streets in Hong Kong to protest against the

bloody Tiananmen Square crackdown. Passions have since subsided, but at the time there was almost universal sympathy for the Tiananmen demonstrators, with funds and moral support flowing north. Hong Kong later played a key role in smuggling up to 800 leading dissidents out of China.

Apparently anxious to close the door on a repeat

performance in the future, Beijing in 1990 insisted

that Article 23 of the Basic Law should require the post-handover authorities to enact broader national security laws. Its current push to implement these laws has been widely interpreted as a key plank in its strategy of preventing Hong Kong becoming a "base for subversion" against the central government. Some legal experts believe Beijing wants the power to extend its reach into Hong Kong if it is again faced with a serious threat to its rule.

Perhaps because of the sensitivity of these measures

at a time when local and international attention was

focused on Hong Kong's freedoms and way of life under

Chinese rule, mainland authorities waited almost five

years before Vice-Premier Qian Qichen in June publicly

called on Hong Kong to speedily pass the new laws.

After extensive, private negotiations with the central government, Hong Kong Chief Executive Tung Chee-hwa on September 24 released a consultation paper giving the public three months to submit views on the proposed new measures. However, in what was seen as a deliberate attempt to deflect detailed criticism, the government failed to publish the specific wording of the legislation expected to be introduced into the Legislative Council early next year. And to further limit any public backlash, top officials launched a vigorous media campaign to reassure the community that Hong Kong's freedoms would be preserved.

"Human rights and civil liberties are the pillars of

our success. I will protect them," Tung said after

releasing the consultation paper. "In drawing up our

proposals for the legislation, we have in fact

compared them with similar laws in many Western

countries. I find our proposals both liberal and

reasonable."

So far, the spin doctoring seems to be paying off.

There has been little public discontent and no serious objection from Britain or other foreign governments. Some local lawyers have welcomed the government's apparent intention to narrow the definitions of most offences.

The muted reaction arises from the belief that the

real danger for Hong Kong over questions of national

security lies in the Basic Law, and there is nothing

Tung can do about that. Under the Basic Law, Beijing

can override all Hong Kong laws if China is at war or

if "turmoil" in the territory is considered a threat

to national security. "They have a trump card at the

end of the day," says Davis.

In some respects, comparisons with similar laws in

other liberal societies are valid. Even the best

democracies retain draconian powers to protect

national security. But civil libertarians note that

Hong Kong is still not a democracy and lacks the

checks and balances that protect citizens elsewhere

from overzealous, corrupt or cynical governments.

The consultation paper reveals that the government

intends to modify the existing law on treason to

define it as joining forces with a foreigner to commit

a range of offences, including overturning the central government or instigating foreign invasion. More controversially, a new offence of secession is proposed to outlaw breaking away from China or resisting the central government in exercising control over national territory through the threat or use of force or other means. With the recovery of Taiwan a priority for Beijing, critics question whether publicly supporting the island's independence would be enough to be accused of secessionism.

Subversion, another new offence, is defined as using

the threat or use of force, or other unlawful means,

to intimidate or overthrow the government.

Pro-democracy activists fear that calling for

democratic reform in China could one day be considered

an attempt to intimidate the Beijing authorities.

Under modified sedition laws, it will be an offence to

incite others to commit treason, secession or

subversion. It will also be an offence to incite

public violence or disorder that endangers stability

in Hong Kong or China. These proposals have been

attacked on the grounds that they could help the

government restrict freedom of expression and muzzle

the press.

In defending their proposals, senior officials say

that it will be up to Hong Kong's independent courts

to rule on the evidence of alleged offences. But,

until the wording of the new laws is published, it

remains to be seen how much scope the courts will have

in striking a balance between national security and

civil liberties. In addition, the power of the courts

relating to national security laws is unclear. Under

Article 19 of the Basic Law, local courts have no

jurisdiction over "acts of state such as defence and

foreign affairs." Legal scholars suggest that in a

crisis the central government could decide on this

ground that national security was outside the

jurisdiction of local courts. Under the Basic Law,

there are also provisions which could force the local

courts to seek interpretation of national security

laws from China's rubber-stamp parliament.

Clearly, most law-abiding Hong Kong people have little

to fear from these new laws in normal times, but a

real threat might arise if the events of 1989 are

repeated and the central government decides it is

under threat. Legal experts warn that many of Hong

Kong's acts of support and solidarity with the

Tiananmen protesters could now be treated as serious

crimes.