In Hong Kong, Security or Suffocation?


By Mark Clifford These days, when talk in Hong Kong turns to politics, there's only one topic: Controversial new laws proposed in the name of national security. Under Article 23 of the Basic Law, the territory's mini-constitution that's the rule of law since Britain relinquished control to China five years ago, Hong Kong has the duty to enact laws "on its own" to prohibit treason, secession, sedition, subversion against the central government or theft of state secrets, and to guard against the influence of foreign political organizations (see below for the exact language of the law).

Now, proposals on the new laws released by the administration introduced in late September have alarmed a broad range of Hong Kong residents. The government proposes sweeping legislation that would allow it to crack down on opponents, from the Falun Gong religious group to journalists and academics. Anyone who attempts "to intimidate" the mainland government -- and it's not clear what that means -- could be charged with subversion, which carries a possible life sentence.

Hong Kong residents who take part in rallies -- even in the U.S. -- calling for the Chinese Communist Party's overthrow could be charged on their return. In some cases, police without warrants would have the right to break into homes and look for evidence of anti-state materials. Not surprisingly, lawyers, academics, and journalists have roundly condemned the proposal as an assault on Hong Kong's freedoms. And you can count me among them.

UNSEEMLY HASTE. It's not just the proposals that are worrying. It's the pace at which the whole process is hurtling forward that really makes me wonder about Hong Kong. Given the great import of these changes, what's the rush to implement them? Security Secretary Regina Ip says Hong Kong and Beijing have agreed that they will try to get a new law passed by July. But it hasn't even been fully drafted yet -- and won't be ready for public release until January. That seems like an ambitious schedule.

I'm also unsettled by the government's refusal to release a draft bill, whose general principles are laid out in the 76-page consultation document, which would allow experts to comment on the precise language in the laws. Ip dismisses the need so-called White Paper, which would contain the exact language of the law -- but once the law is formally presented to the Legislative Council, it will be virtually impossible to make any changes without the government's approval.

Beijing's heavy-handed tactics in this case also makes me nervous. I've lived in Hong Kong for 10 years, and I don't worry about Big Brother from Beijing looking over the shoulder of Hong Kong leaders. Maybe I'm naïve, but China's central government has bigger problems than Hong Kong and seems to be largely happy to pursue a policy of benign neglect when it comes to the territory.

In this case, though, it's discomforting how China's former Foreign Minister, Vice-Premier Qian Qichen, has been wading into the controversy. Several weeks ago, he urged Hong Kong to get on with passing the laws. Then, in late October, he accused those who opposed them of having (depending on which translation you prefer) "guilty secrets" or "devils in their hearts." An interesting choice of words -- and yet another reminder of how wide a chasm separates a rule-of-law-based society like Hong Kong and a mainland China run by the Communist Party.

FRIGHTENING INVESTORS? What's especially puzzling is the Hong Kong government's ram-rod posture in this whole process. It's almost as if officials are deliberately setting out to subvert Hong Kong's international image. Why does the government want to accelerate the process if, as it professes, the proposed new laws will be rarely utilized, and there's no immediate plan to use them? It's almost as if Ip and her crowd are trying to scare investors away from Hong Kong.

Some background: Much of the language in Article 23 was inserted just after the Tiananmen Square killings in June, 1989, as the details for the handover of Hong Kong were being thrashed out between British and Chinese negotiators. Having seen mass public demonstrations in Hong Kong in support of the Tiananmen protestors, the Beijing leadership worried that Hong Kong could become a base from which to mount a campaign to overturn communist control of China. So it toughened up the language during the drafting process.

That was 13 years ago. Hong Kong has moved on. Thankfully, so, too, has China. The mainland's economic growth and social changes have been extraordinary, beyond the imaginations of even the biggest China boosters. Many in Hong Kong saw calamity in the handover to Chinese rule five years ago, but that never happened. Now, far from fearing the mainland, many people in economically depressed Hong Kong are looking to it as a source of strength. While the territory has had four years of deflation and mostly anemic economic growth, China continues to power along, clocking up 7%-plus growth year in and year out.

LIGHT TOUCH NEEDED. Given the lack of a clear and present danger to China or Hong Kong, the territory would be far better off passing the minimal legislation necessary. This would help assure Hong Kong people -- and the world -- that China is serious about implementing the "high degree of autonomy" that the territory has been promised as part of the "one country, two systems" arrangement that accompanied the handover.

Yes, laws bringing Hong Kong into conformance with Article 23 must be introduced. It's the law, and Hong Kong, as a place whose prosperity depends on the rule of law, must abide by it. But for the territory's future, let's ensure that it's as light a law as possible. And let's make sure that there's as much public consultation as needed. These will show the world Hong Kong's strengths. A rush to pass flawed laws will only showcase Hong Kong's weaknesses.

Note: For readers who are interested, the exact language of the Article 23 provision is as follows: The Hong Kong Special Administrative Region "shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the central 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."

Clifford is Hong Kong bureau chief for BusinessWeek. Follow his China Journal column every week, only on BW Online


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