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Article 23: Hong Kong's first faux
pas?
By Phar Kim Beng
HONG
KONG - In proposing to introduce to the Basic Law
Article 23, legislation meant to counter possible acts
of treason, secession, subversion and sedition,
including the theft and distribution of state secrets,
talk has been rife that the Hong Kong government is
responding to the dictate of Beijing.
That is,
instead of retaining the integrity of "one country, two
systems", a pledge originally made by Chief Executive
Tung Chee-hwa - indeed, one that will be the mantra of
future chief executives of the special administrative
region for the next 45 years, according to the
pre-handover agreement between London and Beijing -
there is the perception that his administration has
already caved in to Beijing's pressure.
This
perception is so entrenched that the debate surrounding
the application of Article 23 revolves, in the main,
around issues such as Taiwan's independence, Tibetan
secession, the seemingly rebellious activities of
Falungong, and the possession of official documents. All
these are issues of concern to Beijing, not Hong Kong.
That is to say, journalists and the general
public alike are making the assumption that what will
get them in trouble is not criticism aimed at the Hong
Kong government, but those issues deemed by Beijing to
be "sensitive".
Thus, while on surface it
appears that Hong Kong people are concerned with the
dire implications of Article 23, the reality of the
matter is that they are more apprehensive of their
relationship with Beijing.
Article 23, rightly
or otherwise, has been deemed to originate from the
desire of Beijing to exert stronger administrative
control over Hong Kong.
There is the fear - a
residue of the worries that led up to Britain's handover
of sovereignty to China in 1997 - that Beijing is trying
to draw Hong Kong completely into its orbit of
influence, that what is now banned in the mainland must
be abjured by Hong Kong, with no local discretion
allowed.
In making its case for Article 23, the
Hong Kong government has resorted to using an apologetic
line of argument. Since Britain, Canada, the United
States and Singapore have legislation similar to Article
23, then Hong Kong, as a part of China, should have it
too. By having Article 23, the explanation goes, neither
the liberal features nor laissez faire nature of Hong
Kong will be compromised.
In itself the argument
has the force of fine logic. The above examples are
paragons of either democracy or economic prosperity,
both of which are attributes Hong Kong wants to emulate.
What comes across as sensible, however, falls in
the face of careful scrutiny. In each of the cases
offered with the exception of Singapore, which is ruled
by an authoritarian party and is therefore an invalid
analogy to Hong Kong, the columns supporting the
democratic attributes of the countries include: regular
elections; a vibrant civil society; a powerful free
press; and never having had (in modern times) the
ignominy of having been invaded in the first place.
In other words, Britain, Canada and the United
States can afford to have anti-sedition and
anti-subversion laws because any arbitrary application
would be subject to plausible counter-pressures by one
or all elements. Put more bluntly, public opinion
mobilized in the street, at elections, or through the
media can censure or constrain the government from
wanton exercise of its expansive power.
But as
shown from the aftermath of last year's September 11
attacks on the United States, the moment some form of
threat was deemed to exist within the polity, arbitrary
arrests and racial profiling became accepted.
Indeed, Hong Kong has none of the attributes
enjoyed by the above countries. The analogy drawn to
qualify Hong Kong's need for Article 23 is therefore
weak in substance. It is also totally untenable given
that Beijing's administrative control will progressively
increase until Hong Kong is fully absorbed by the
mainland. How Article 23 is interpreted and by whom will
depend not on local leadership but elements with the
real reins of power in Beijing.
So is Article 23
Hong Kong's first faux pas after five years of
experimenting with "one country, two systems"? To
qualify as an error, Article 23 would have to be
legislated first. So far, it is still in the
consultation stage, and isn't scheduled to become law
until July 2003. Therefore any adverse reaction is
purely hypothetical and based on a negative impression
of what Beijing could do. This is by no means fair.
However, once the legislation - deemed the
"missing piece" of the Basic Law - is on the books, the
power of the Hong Kong authorities will increase. Hong
Kong people would then have to contend with the
legislation's very power and parallel ambiguity.
Moreover, whether Article 23 signals the
beginning or the end of a liberal and free Hong Kong is
as much a factor of how lawyers use the "fine print" as
of what political scientists call "emergency powers".
And the latter is subject to the proverbial mind's eye.
If there is the perception or intuition - all
intangibles, as one may note - that some elements out
there are harboring the malevolent intention to
undermine Beijing or Hong Kong's governance, then
Article 23 will automatically come into force.
Is Article 23 too close for comfort? Absolutely.
Tung and his cabinet have acknowledged as much by
seeking the opinion of the Hong Kong people first,
knowing very well that their permission is imperative.
It is now up to Hong Kong people to decide whether the
current phraseology of Article 23 is in need of further
fine-tuning or should be dismissed in its entirety.
This is a tall order given that other than
demonstrating in the streets, the people of Hong Kong do
not have the mechanism to register their dissent
officially and systematically. Therein lies the whole
problem: while Security Chief Regina Ip has been going
around trying to calm the fraying nerves of Hong Kong
residents, the people in general have no way of telling
her, and the cabinet which she represents, that given a
choice they would rather vote Article 23 down.
(©2002 Asia Times Online Co, Ltd. All rights
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