Worries
By DAVID LAGUE IN
AS HONG KONG and mainland
leaders gathered to
celebrate
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
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
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
economic prosperity will remain
intact.
"Subversion does not cover
groups that chant slogans
only," said
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."
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
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
covering the jurisdiction of
local courts, are a legal
Trojan horse. Once parked in the
statutes, they claim,
the new laws will give
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
Falun Gong spiritual
movement. Another group that
could find itself in
in Support of Patriotic
Democratic Movement in
Civil libertarians claim there
has scarcely been a
single incident since
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
However, it seems that it is not
events since the 1997
handover that are uppermost in
upheavals of 1989 when more than
a million people took
to the streets in
bloody
Apparently anxious to close the
door on a repeat
performance in the future,
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
Perhaps because of the
sensitivity of these measures
at a time when local and
international attention was
focused on
Chinese rule, mainland
authorities waited almost five
years before Vice-Premier Qian Qichen in June publicly
called on
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
"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
The muted reaction arises from
the belief that the
real danger for
security lies in the Basic Law,
and there is nothing
Tung can do about that.
Under the Basic Law,
can override all
if "turmoil" in the
territory is considered a threat
to national security. "They
have a trump card at the
end of the day," says
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
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
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
an attempt to intimidate the
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
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
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
Clearly, most law-abiding
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.