Publication: China Brief Volume: 2 Issue: 22

It is too soon to assert that Hong Kong’s freedoms, ostensibly guaranteed in the handover from British to Chinese sovereignty, are under sustained attack. But it is not too soon to assert that Hong Kong faces nine months of potentially divisive debate and risks a further loss of confidence in those freedoms as the government embarks, in maladroit fashion, on a hazardous legal and political exercise at Beijing’s prodding.

This is because the government has finally begun to implement Article 23 in its China-endowed Basic Law: “The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.”

Article 23 was not always so wide ranging. As Article 22 in a 1988 draft, it merely requested laws against “any act designed to undermine national unity or subvert the Central Peoples Government.” By February 1989, Article 23 had at least been reduced to concepts already recognized in Hong Kong’s British-style common law as the constitutional requirement became laws that “prohibit any act of treason, secession, sedition, or theft of state secrets.” The final form, in which both subversion and anti-foreignism found a place, was passed in June 1989, not long after the Tiananmen demonstrations and the Beijing Massacre. Article 23 reflected Chinese communist paranoia then, and it does so now. It increased Hong Kong fears for the future then, and it does so now.

At least, for the first five years after Hong Kong’s reversion to Chinese sovereignty, the Hong Kong government shrewdly avoided the deep-seated controversy that any implementation of Article 23 is bound to arouse.

But recently, Beijing has increasingly pressed the case for Article 23. On his last visit to the special administrative region (SAR), President Jiang Zemin indicated that the SAR should improve its security and its laws. Other leading figures, such as Vice Premier Qian Qichen, have been more specific. The editorials and headlines of the Hong Kong edition of China Daily–owned and published by the Communist Party–have been even more insistent.

Beijing’s paranoia and pressure, plus the desire of Chief Executive Tung Chee-hwa to lead a patriotic administration always anxious to please China, rather than to assert Hong Kong’s separate identity, have been the main motivating forces. Yet the decision to implement Article 23 right now remains highly irrational politically.

Hong Kong has been stable since returning to Chinese sovereignty: There is no sign of any of the crimes being committed on which Beijing wants legislation enacted–at least, according to Hong Kong standards, which are different from China’s. It is already depressed by the worst economic downturn and the highest unemployment rates in a long while. Amidst the economic uncertainty, much of the old Hong Kong self-confidence is diminished. The second-term administration of Chief Executive Tung Chee-hwa has yet to find its feet. It already suffers from unsatisfactory approval ratings.

Both in economic and security terms, the international situation is unsettled. Against this unstable and even precarious background, to risk even more loss of confidence, and to lock the SAR into nine months of increased political anxiety, seems the height of political folly. Yet these two consequences are likely to be the inevitable by-product of implementing Article 23 at this time.

Such folly could only be undertaken by a Hong Kong which, after 155 years of British colonial rule, has not learnt to think politically for itself, and by a Beijing leadership that has yet to learn the political wisdom of the phrase “If it ain’t broke, don’t fix it.”

Initially, the government has issued a detailed consultation paper, plus a shorter summarized version, on its proposals and intentions, stipulating a three-month consultation period during which the public can respond. The consultation ends on December 24. The wish has been expressed to pass the legislation by July 2003.

Government officials were quick off the mark suggesting that there was no need to worry. They have tried hard to minimize the legal changes that will be made, and have emphasized that in several cases old British-endowed laws will merely be updated. It is stressed that freedom of expression and of the press will be sustained–and that mere expressions of opinion will not be penalized by the new laws.

Yet it is becoming clear that the effort to reassure is not succeeding, and that worries for the future of Hong Kong freedoms are increasing. There are three emerging reasons for this.

First, and as an interesting example of the Sinification of Hong Kong politics, the government, particularly Mr. Tung, seems increasingly prone to see only positive support in the public reaction. It is an old trick of Chinese communist politics to assert that the people fully welcome and approve this or that policy. Because the controlled press is already reporting that the masses warmly welcome this wise government decision, the similar assertions by the government only add to the false image of pervasive government-to-people harmony.

As Tung asserts that “the good response and support from all walks of life (on Article 23 legislation) are indeed gratifying,” he seems to be adopting the same technique. He also implies that support for the new legislation is a patriotic duty. No doubt Tung would soon discover that criticism comes only from “a very small number of people” were it not for one thing: The technique of self-praise politics only works when the media are strictly controlled. Against that, the government has yet to address seriously the many criticisms of its proposals being directed at it by, and in, Hong Kong’s still-free press.

The second reason for unease lies in the incomplete nature of the consultation. It is a lengthy document setting out the government’s broad policy and intentions. It is difficult to respond specifically to such a document. Yet potentially explosive issues are being discussed. With subjects like treason, secession, sedition, subversion, theft of state secrets, increased police powers and the foreign connections of political organizations all on the legislative agenda, the smallest verbal slip in the legal drafting, or in the legal definitions provided by the new law, can easily have draconian implications. Such a legal error happened here in the early 1980s under the British. It could happen again.

The third reason for anxiety is that the government itself is discrediting the whole consultation exercise. With the second reason very much in mind, leading democratic politicians, lawyers, the Bar Association and newspaper editorials have all called for a white paper to be presented setting out the actual drafting of, and definitions for, the new legislation.

This procedure has been followed for other less controversial legislation in Hong Kong in the past, so why not now? The case for such a further consultation was stated very clearly by the former second-ranking official in the government, Mrs. Anson Chan, in an October 2 speech to the Heritage Foundation in Washington DC: “The Hong Kong government has assured the public that it will consider carefully all views expressed. But as we all know, the devil is in the detail. We would all find it reassuring if the government was to agree to publish the draft legislation itself for further consultation before it goes to our legislature. It is important to get the legislation right, rather than to rush to meet a deadline.”

“The more you read into this document, the more anxious and concerned you get,” Bar Association chairman Alan Leong Kah-kit says. “There are some glaring ambiguities.”

Yet when the proposal was first advanced, the government immediately turned it down, and has continued to do so. Since the very first serious suggestion to emerge from the consultation has been immediately rejected, why bother to make any more serious suggestions?

The government will, of course, issue a blue paper containing the draft legislation when it presents the new bill to the Legislative Council. But then there would be no time for the public to voice its concerns, and the government might well use its unelected majority in Legco to rush the bill through. The obdurate official response already increases the damaging suspicion that Mr Tung and his officials have already got Beijing’s approval for a final draft and dare not take it back to the Chinese leaders for further amendment.

Secretary for Security Regina Ip went so far as to assert that because the ordinary people would not understand the legal language, there was no point in consulting them on it–a politically maladroit remark that has got a lot of thoughtful Hong Kongers very angry. In other words, because a few may not comprehend, let’s keep everyone in the dark. This comment alone brilliantly illustrates the extent to which authoritarian reflexes have become the natural habit of Hong Kong’s unelected ruling elite.

The South China Morning Post reported an unnamed member of the Executive Council (the cabinet) as saying that the government would definitely not agree to a further consultation. “The reason is simple: political consideration. It will give an opportunity for people to suggest all sorts of changes. We will have an endless debate.”

Remarks like this only deepen the growing suspicion that what the government ultimately intends is to push through a bill that will, intentionally or unintentionally, wittingly or unwittingly, contain arbitrary authoritarian powers, and restrictions on present freedoms.

Only in one sense has Beijing’s and Tung’s timing been good–amidst American and British preoccupation with Iraq, terrorism, the Bali atrocity and now North Korean nuclear proliferation, fewer concerned foreigners have been looking at Hong Kong’s latest confidence crisis than might otherwise be the case.

Harvey Stockwin has been reporting and analysing Asian developments since 1955. Currently he broadcasts a weekly 15-minute talk “Reflections From Asia” for Radio Television Hong Kong, contributes to the Japan Times, and is the East Asia correspondent of The Times of India.