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March|April 2003
Http In Cincinnati By Amy Benfer
One Country, One System? By Doreen Weisenhaus
Reds, Whites, And Blue Laws By Max Garrone

One Country, One System?

Doreen Weisenhaus on Beijing's effort to curb speech in Hong Kong.

By Doreen Weisenhaus

WHEN BRITAIN AND THE PEOPLE'S Republic of China negotiated Hong Kong's return to Chinese sovereignty, they agreed to a "one country, two systems" formula for governing life in the former British colony. The unusual deal gave autonomy to Hong Kong, allowing it to keep freedoms like the rights of association and of expression, a freewheeling capitalism, and a common-law legal system. The deal also included the promise of eventual full democracy. But the PRC, where only the Communist Party has political power, insisted on a catch: At an unspecified future date, the newly created Special Administrative Region of Hong Kong had to pass anti-subversion laws. Last fall, to great controversy, the future arrived.

Hong Kong's secretary for security, Regina Ip Lau Suk-yee, revealed in September her government's proposals for laws punishing crimes against the state, including sedition, treason, and theft of state secrets as well as subversion. Ip is responsible for internal security, drug control, and immigration—in general, for law and order. Known to many simply as "Regina," she studied 16th-century English poetry at the University of Glasgow and management at Stanford, and she has been a Hong Kong civil servant for more than 25 years. Now 51, the Donald Rumsfeld-like Ip frequently spars with reporters and pro-democracy legislators as she goes about her current job, which she says is about protecting Hong Kong and China from enemies and from society's "dark side." "There are bad people in this world," she has said publicly. "We must have laws to use against bad people."

During one of Ip's many appearances before community groups last fall, university students booed her when she told them that the people of Hong Kong endorsed the government's proposed laws. When students suggested that the government wait to develop the new laws until Hong Kong's partial democracy moved closer to universal suffrage—only one-third of the 60 members of the local legislature are directly elected by voters—Ip said that was not a good idea. Germany had democracy, she said, and look what it got them: Hitler. Students jeered.

Ip has fared no better before journalists, lawyers, religious leaders, and academics. In late October, at the Foreign Correspondents' Club, many questioned the seeming severity of proposals that, if passed, would give Hong Kong police the power to search homes without warrants in the name of national security and would make it a crime for Hong Kong residents to possess "seditious" anti-government publications.

Margaret Ng Ngoi-yee, an independent Hong Kong legislator who shared the dais with Ip at the correspondents' club discussion, criticized the government for not releasing the language of the legislation it intended to submit in early 2003. The laws, she charged, were being written according to the "instruction of the Central People's Government," meaning Beijing.

By the time the government's three-month consultation period ended on Christmas Eve, it had received more than 90,000 written responses to its anti-subversion proposals. Most were supportive of the government, officials say. But earlier in December, thousands of protesters had gathered in historic Victoria Park overlooking the harbor and marched two miles to the government's main offices in Hong Kong's central business district. They were welcomed by people like Li Leung, an 80-year-old retired vegetable hawker, who called the government package "the devil's law." Walking past mainland-owned banks and businesses, the marchers also faced supporters of Beijing, including one man who shouted, "Down with the running dogs!" As the protesters piled up at government headquarters next to St. John's Cathedral, Hong Kong's oldest Christian church, their number reached an estimated 60,000. A week later, pro-Beijing groups produced 40,000 people for a counter-demonstration.

Not since the former colony was handed over to China after 150 years of British rule has conflict and fear gripped and politicized Hong Kong's nearly seven million residents as it has during the battle over Article 23, the clause in Hong Kong's Basic Law, or mini-constitution, that mandates enactment of the anti-subversion laws. By February, the Hong Kong government was expected to release its final draft bill to the legislature, where it is likely to be passed by a pro-Beijing majority by summer.

IN 1997, AFTER HONG KONG REVERTED TO China, many in the former colony expected People's Liberation Army tanks to roll in. They predicted a muzzled press, arrests of dissidents, and a dismantling of the British-based legal system. Little of this has happened. Last summer, at celebrations marking the fifth anniversary of the handover, commentators noted that Hong Kong's way of life has remained mostly intact, from its rambunctious newspapers to its raucous political demonstrations.

Ominously, however, in 1999, Beijing stepped in to overturn a decision by Hong Kong's highest court involving the "right of abode." The court had ruled that mainlanders with at least one parent living in Hong Kong could become residents too. Hong Kong's top official, Chief Executive Tung Chee-hwa, asked Beijing to review the decision in response to concern that Hong Kong would be overrun with mainlanders. Beijing obliged. It reversed the court, setting the worrisome precedent that having intervened once, the PRC could do so again.

Hong Kong is of two minds about the mainland, where Falun Gong members who unfurl banners and Chinese citizens who post comments on the Internet can be taken into custody by the government. (Falun Gong, which says it is a spiritual movement with tens of millions of followers, was banned on the mainland as an "evil cult" in 1999; it is considered by the Chinese government the most serious challenge to its authority since the Tiananmen student uprising of 1989.)

But many Hong Kongers also believe they need China. Hong Kong, though still prosperous, is in the economic doldrums. Property values have plummeted; the government deficit and unemployment are at record highs. The mainland's economy, on the other hand, is one of the fastest growing in Asia. The future of Hong Kong lies in stronger ties with the Guangdong province immediately to the north. There, Shenzhen, which was a small farming village just two decades ago, has become a showy and wealthy rival with about the same population as Hong Kong.

Five years of Chinese sovereignty have had another effect. While most people in the former colony describe themselves as "Hong Kongers," nearly half now identify themselves as "Chinese," up 10 percent since the handover. In terms of identity, Hong Kong is almost evenly divided, which helps explain the deep split that developed when the local government unveiled its anti-subversion proposals.

THE PROPOSALS WERE A LONG TIME IN coming. In 1984, China and the United Kingdom signed the Sino-British Joint Declaration, which set the timetable for China's resumption of sovereignty and introduced the formula of "one country, two systems," developed by the late Chinese leader Deng Xiaoping. Unlike the rest of China, Hong Kong would be governed according to a Basic Law, to be drafted by a committee under the PRC's National People's Congress—with Hong Kong participants—and adopted by the congress. The Basic Law would take effect after the handover in 1997 and would set the terms of Hong Kong life for the next 50 years.

For China, the return of Hong Kong ended a humiliating chapter of history. In the mid-1800s, after devastating losses in two wars with England intended to stop the opium trade, China's last feudal regime, the Qing Dynasty, was forced to give up Hong Kong. Yet China was also of two minds about the recent reunion. Hong Kong has long been a politically volatile refuge for Chinese caught in one upheaval or another on the mainland—from those fleeing the Communist Party in 1949 to those escaping the terror of the Cultural Revolution of the late 1960s and early 1970s. "Hong Kong has been used as a base for different political forces to subvert the Chinese government, be it the Qing Dynasty, the Nationalists, or the Communists," said Hualing Fu, a law professor at the University of Hong Kong, who straddles the former colony and China as an expert about criminal law in both places.

Ip argues that every nation has the right to protect itself against spying and subversion and that the Hong Kong laws to be replaced don't adequately protect the PRC. The language of Article 23 requires Hong Kong to "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."

The original language of Article 23 was simpler. As drafted in 1988, it "prohibited by law any act designed to undermine national unity or subvert the Central People's Government." The British government and locals complained loudly about the broad and vague terms. A second draft issued in February 1989 removed subversion, an offense not generally known in common-law systems like Britain's or Hong Kong's, and added the more recognizable concepts of treason (attempting to overthrow one's government) and sedition (causing resistance or insurrection, usually by the printed word). It also said Hong Kong would pass "laws on its own" to prohibit these crimes, as well as secession and theft of state secrets.

While everyone was pondering the more specific draft, China's leaders underscored how much they valued stability and political survival. In June 1989, they sent tanks into Tiananmen Square in Beijing to crush pro-democracy protests led by students. Support for the protesters was intense in the still British-run colony. Almost one million Hong Kongers marched in the streets; many gave money and sent aid to the Chinese students. "The criticism from Hong Kong of Beijing's decision to use force likely further solidified Beijing's fears that Hong Kong would become a center for what it considered anti-government subversive activity," the watchdog group Hong Kong Human Rights Monitor said in a report last year.

The PRC reacted swiftly to these voices. Reflecting changes demanded by Beijing, the final draft of Article 23 was issued. It reinstated the prohibition against subversion and added the words "against the Central People's government" and a ban on links between Hong Kong political organizations and "foreign" groups.
According to Hualing Fu, the law professor, "The 1989 Tiananmen movement and its subsequent political suppression generated unprecedented fear in Hong Kong for the future erosion of civil liberties after the transition. It accelerated and deepened Hong Kong's democratization process. Article 23 was a direct consequence of the suppression and presented a direct threat to liberties in Hong Kong."

Dubbed the "seven sins" by the local Chinese press, the proposals cover treason, sedition, state secrets, subversion, secession, and the banning of foreign political organizations from conducting political activities or establishing ties with Hong Kong organizations. Treason and sedition already exist as offenses in Hong Kong criminal laws and are to be sharpened; secession and subversion did not exist as crimes and have been added. Hong Kong had inherited strict official secrets laws from the U.K., but the proposal to revamp and expand these laws threatened to bring in new and stronger restrictions from China because of the mainland's broader definition of "theft of state secrets." Some of the offenses and penalties, like life imprisonment for subversion, were as severe as those on the mainland.

Lawyers and academics expressed special concern about the government proposal to include with its definition of "levying war" the idea of "threat of force" or "other serious unlawful means" in "resisting" the Chinese government in its exercise of sovereignty (a crime of secession) and in "intimidating" the Chinese government (subversion). While narrower than China's own laws, this definition still "casts the net very wide," says Albert Chen, a former dean of the University of Hong Kong law school and a member of the committee that advises the National People's Congress on the Basic Law.

Chen noted that government documents make it clear that levying war does not require the use of military weapons. If a "considerable number of persons" create a disturbance to force the release of prisoners in Hong Kong jails, for example, this might constitute an act of war, according to a footnote in a government paper on the proposals. The government also recommended making it a crime not to report knowledge of treasonous activities.

Hong Kong plans to narrow the definition of sedition to situations where someone incites others to commit treason, to secede, to subvert the government, or to cause violence or public disorder that seriously endangers the stability of the Chinese state or Hong Kong. While many applaud the narrower definition, they worry about the vagueness of terms like "public disorder." And they point out that sedition is an antiquated concept disavowed by modern democracies as a relic of colonial times. Created by the Star Chamber centuries ago in England to suppress opposition to the crown, these laws are rarely used today except in repressive regimes like Malaysia, Uganda, and Nepal.

Journalists and the business community have cringed at the government's plans to prohibit the theft of state secrets. They remember the case of Xi Yang, a reporter for Ming Pao, a leading Chinese-language newspaper in Hong Kong, who was sentenced to 12 years in prison by the PRC in 1994 for articles he wrote about Beijing's plan to sell gold and raise interest rates. Xi, whose stories were purportedly based on documents from the People's Bank of China, was released in 1997 just before the handover. "It is well-known that in the mainland, state secrets are often interpreted broadly, and some Hong Kong and overseas journalists and scholars have been prosecuted and convicted for violations of China's state secret laws," Albert Chen wrote in Hong Kong Lawyer magazine in November.

Apple Daily, the most vocal pro-democracy newspaper among Hong Kong's 14 dailies, takes Article 23 personally: The new laws, if passed, will target the paper, says Kin-ming Liu, its general manager. "The Apple Daily is high up on the agenda of what the government has in mind," he said.

In October, along with two other journalism professors, a Hong Konger and a mainland media law expert, I was invited to discuss the government's proposals with Secretary for Security Ip. She sat across from us at a conference table, flanked by aides from the Security Bureau and the Department of Justice. The conversation flowed freely from English to Cantonese to Mandarin as Ip sought to reassure us. "While we appreciate concern, we're not really doing anything to concern the media," she said.

But she also said that a "government has to protect information" and prevent some of it from being aired or published. For example, she told us, the U.S. government asked America's media not to air interviews with terrorists. But, I pointed out, although most media outlets complied, they were not prohibited from airing that kind of interview.

"See, the Hong Kong media does not have this restraint," she said. "They publish photos of dead bodies." Ip was referring to the local Chinese newspapers' penchant for publishing graphic front-page photographs of bloodied victims of suicides, traffic accidents, and domestic violence. "That's not national security," I replied.

The secretary for security would wield immense new power under the proposed laws. Nowhere would this additional power come more into play than in the provisions dealing with barred organizations, which, if passed, would give her a broad mandate to investigate and ban Hong Kong groups. Opponents say the laws are most troubling in connection with organizations like the Falun Gong and the Roman Catholic Church, which has connections with underground churches in China. The government's proposal would permit the secretary for security to ban an organization in Hong Kong if it is "affiliated" with a mainland organization that has been outlawed by the PRC for reasons of national security.

More than any other power established by Article 23, this one seems to defer to China about what endangers its national security, and thus, opponents say, violates the principle behind the "one country, two systems" formula. Mainland laws on national security are broad: Security is defined to include China's "stability," not just its safety and survival. Ip denied that the Hong Kong government would apply mainland laws and insisted that it would adhere to international standards protecting human rights, as required by the Basic Law. Opponents also say the proposal to ban Hong Kong affiliates of banned mainland organizations seems beyond the power of Article 23, which, according to its language, aims to prohibit Hong Kong organizations from entanglements with "foreign political organizations or bodies."
To Martin Lee Chu-ming, a prominent barrister and legislator in Hong Kong, the leaders of the local government are failing because they are unnecessarily favoring "one country" at the expense of "two systems." "My greatest worry is that they consulted Beijing and reached a consensus with Beijing," he said.

Such consultation is wrong, Lee said, and against the principles of the Basic Law. Lee was one of the original drafters of the Basic Law, and he believes it em-powered Hong Kong to enact its own laws without supervision. While Ip and others have said Hong Kong consulted Beijing only on the general points and timing of the proposed legislation, Lee believes leaders of the former colony have done more, perhaps even accepting China's recommendations for the draft bill. "They give too much power to China!" Lee said. "If these laws were enacted today, tomorrow the Falun Gong could easily be banned if Beijing would press the button. What if Beijing says the Democratic Party of the PRC constitutes a threat to national security and that the Hong Kong Democratic Party is a branch of that? We know it's a lie, but how can you overcome it?"

To Lee, Article 23 is the biggest test so far for local leaders. He recently stepped down as chairman of Hong Kong's Democratic Party, which he founded eight years ago. The Democratic Party is Hong Kong's largest political group, but it isn't expected to remain so after the next legislative elections in 2004. A pro-Beijing party, the Democratic Alliance for the Betterment of Hong Kong, is expected to take the lead.

Lee and his party are frustrated over the glacial speed of the evolution toward full democracy. The 2004 elections will see the share of members popularly elected to the legislature grow to half, and the Basic Law allows in 2007 for the establishment of democratic elements like the direct election of the chief executive. But no one expects the government to announce a timetable for those additional steps any time soon.

An outpost of free expression and its secretive motherland are about to become intertwined in the realm of national security. The Article 23 laws have the potential to undermine what "one country, two systems" was supposed to mean for the people of Hong Kong and China, with the two systems protecting the one country.

Doreen Weisenhaus teaches media law at the Journalism and Media Studies Centre at the University of Hong Kong.

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