Last September, for national security reasons, the Hong Kong Executive Council publicly announced the implementation of Article 23 of the Basic Law, Hong Kong’s constitution created in 1984 by the Joint Sino-British Declaration in anticipation of Hong Kong’s reunification with the People’s Republic of China in July of 1997. The contents of Article 23 (initially drafted as Article 22) were first included in the aftermath of 1989’s Tiananmen Square Massacre, and after several revisions, it reads in its entirety: “The Hong Kong SAR (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.” In essence, this would be Hong Kong’s very own regulation of speech.
The timing of this decision betrayed China’s motives. The prospect of the 1997 takeover had already caused much controversy and engendered fears of Communist rule, despite reassurances made by government officials of a high degree of separation under the “one country, two systems” formula. To announce Article 23’s implementation immediately following the handover would confirm those fears. Contrary to Beijing’s expectations, publicizing the decision to implement this security legislation five years after has aroused feelings of resentment and disappointment towards China and the Hong Kong government. Written, oral, and street protests have taken place in reaction to China’s intent to clasp Hong Kong tighter within its grip and the region’s current Chief Executive Tung Chee Hwa’s blind acquiescence.
Many protest groups exaggerate the potential effects of Article 23, but the deliberate ambiguities of the legislation is a cause for concern. It is a necessity to enact legislation ensuring the security of the state. One of the guiding principles stated in the “Consultation Document” published by the Hong Kong government in September 2002 to garner and supposedly take into consideration public opinion calls for “the need to protect adequately the State’s essential interests, namely sovereignty, territorial integrity, unity and national security.” Providing a blueprint of the government’s intention behind Article 23, the document defines more specifically, although not helpfully, the terms “treason”, “secession”, “sedition”, and “subversion."
Its definitions and lack of concrete details, however, leave plenty of room for abuse. The broad terminology and the document’s sloppy use of language betray either the government’s incompetence in clearly explaining the intended legislation or its repressive intentions. Given China’s track record of jailing peaceful dissidents and Hong Kong’s acquiescence towards mainland directives, the latter explanation seems more plausible. Following the three-month public consultation period, the National Security (Legislative Provisions) Bill was published by the Executive Council. Although more detailed than the “Consultation Document,” core ambiguities still remain. The use of armed force is a necessary component for actions charged as treason and secession. This definition is concrete and safeguards abuse. Grave problems, however, arise when analyzing what the government means by sedition and subversion.
Note the vagueness of the explanation of subversion. A partial definition from the National Security Bill reads: “A person commits subversion if he intimidates the Central People’s Government by using force or serious criminal means that seriously endangers the stability of the People’s Republic of China…” The guiding principles as stated by the HKSAR government in the “Consultation Document” do not mention “stability”. In many cases such as this one, the government uses “stability” and “security” interchangeably, confusing the distinction between the two significantly different concepts. Non-violent and massive protest may be endangering stability but may not be endangering national security. Stability is also highly subjective, and mainland China has on numerous occasions prosecuted peaceful dissidents whether they be from religious groups or political or labor sectors to preserve “stability.”
Sedition runs into the same problem. The “Consultation Document” calls for “sedition offences to protect the state and key institutions from stabilitythreatening communications.” Furthermore, the document classifies inciting others to “violence or public disorder that seriously endangers the stability of the state…” as sedition. “Seriously endangers” is not clearly defined. These key components of the definition delineated in the document carried over to the National Security Bill in which the definition is couched in a more implicit form. Dealing with seditious publications, section 9C of the bill states that publications are seditious if they are “likely to cause the commission of an offence” under treason, subversion, or secession. The high subjectivity of the phrase “likely to cause” is also problematic and allows for possible abuse by a centralized power without a truly independent judiciary, which is the current state of affairs in Hong Kong.
Article 23 is only one major flaw among the many problems of the Basic Law. Many have claimed that a completely different system would be in place in Hong Kong and that China would not dominate Hong Kong’s society as guaranteed by this Law. In reality, the Basic Law guarantees very limited autonomy. Many sections and articles of the document allegedly protect the freedoms enjoyed by Hong Kong citizens before China’s takeover. Article 5, for example, guarantees that “the previous capitalist system and way of life shall remain unchanged for 50 years.” Articles 27 to 39 secure such freedoms as press, speech, association, movement within the HKSAR and emigration, and residential privacy. Upon cursory examination of these guarantees, one can draw the mistaken conclusion that indeed the “one country, two systems” is sustainable. Yet, with seemingly benign, though ambiguous, provisions such as Article 23 this concept appears to be questionable.
In essence, China has final say over all political matters in Hong Kong. The fate of all Executive Council department secretaries and especially the Chief Executive himself is determined by China’s Standing Committee, and thus the interests of these public servants are inextricably tied with those of the Central Government. Under this deliberate setup, courageous and reform- minded leaders will never play a central role in setting Hong Kong on a path towards true democratization. Instead, the region is headed by cowardly toadies like current Chief Executive Tung Chee Hwa and Secretary of Security Regina Ip who is the main government official pushing forward the Article 23 legislation. Everyone knows the reality of Hong Kong’s puppet government, but unfortunately the “checks” of the legislative and judicial bodies can do nothing to oust the Chief Executive and his entourage of like-minded appeasers because they are also controlled by the People’s Republic of China.
A practical solution to cut the attached strings joined to the mainland would be to expedite the process of establishing universal suffrage for the offices of the Chief Executive and members of the Legislative Council by amending the Basic Law. But because China’s approval is required for such an action, nations outside the Asian region such as the United States and Great Britain would need to put pressure on the mainland in order for progress to materialize. Until that moment arrives, Hong Kong’s government will continue to serve in the interests of China’s Communist leaders even if it entails sacrificing Hong Kong’s citizens, whom it should represent.
Eric Tung is a freshman in Branford College.