September 27, 2002

( After Hong Kong returned to Chinese rule in 1997, most observers expected the new government to curtail civil liberties. And that indeed was the case, as within days of the handover, organizers of public demonstrations, for example, became subject to greater limitations. However, a bigger battle loomed over a provision in the Basic Law, the territory's new constitution. Article 23 required new legislation on seven categories of crimes endangering national security, including sedition and subversion. When would the real crackdown begin?

Evidently Beijing and the Hong Kong government realized that letting a few years pass would allow the attention of the world to drift away from all those awkward treaty promises to keep the territory's way of life unchanged. That proved to be a brilliant tactic. This week Hong Kong unveiled its proposal for anti-subversion legislation, and international reaction has been muted so far.

Moreover, the government was not only smart about timing. The Security Bureau, which researched and drafted the proposed laws, chose the stiletto over the sledgehammer.

When the Basic Law was completed in 1990, Beijing was still angry over the way Hong Kong people had supported the student demonstrators in Tiananmen Square the previous year. Chinese leaders no doubt envisaged a tightly worded anti-subversion law that would prevent Hong Kong people from supporting any pro-democracy movement on the mainland. But Hong Kong's legal experts have taken a different tack to get to the same goal.

Trying to pass and enforce an anachronistic subversion law that outlawed mere expressions of antigovernment opinion would have been difficult legally and politically. Hong Kong judges draw on a large body of precedent within the common law tradition that runs against such an approach, international covenants on human rights as well as a locally passed bill of rights. Outlawing such expressions also might have stirred up a campaign of civil disobedience.

So the government opted to stay within the common law mainstream when it comes to laws against sedition, subversion, treason, secession and theft of secrets. At the same time it managed to satisfy Beijing's requirements to help prevent future crises like the 1989 protests by going beyond what Article 23 required. One of the proposed laws will not only prevent foreign political organizations setting up branches in Hong Kong, it will allow the government to ban local groups that cooperate with organizations banned in
mainland China.

Naturally, Hong Kong people are now asking whether this could be used to prevent the kind of support they gave to the students in 1989; or to outlaw peaceful groups like the Falun Gong, which operates in Hong Kong [...]. The government says no, but the real answer to all these is probably yes.

The official reassurances aren't reassuring. In a briefing to reporters, Solicitor General Bob Alcock took the protest actions of Hong Kong citizens in 1989 and checked them against the provisions of the proposed laws, concluding that they still wouldn't qualify as crimes. And when it comes to banning groups, the Secretary for Security Regina Ip pointed to the fact that in its 53 years of existence, the People's Republic of China has never banned a group on national security grounds.


In the case of protests or strikes on the mainland, moreover, Hong Kong people might be found guilty of subversion if they offer financial support. Subversion is to be defined as intimidating or overthrowing the government by levying war, use of force, threat of force or "other serious unlawful means." This final phrase is taken directly from the new United Nations antiterrorism measures -- a political masterstroke on Ms. Ip's part. But now instead of being used to fight terrorism, it will be turned against free speech. Provisions intended to outlaw money transfers to an al Qaeda cell could be used to imprison those who transfer donations to members of the banned China Democratic Party. It's hardly far-fetched. Mainland officials and media have repeatedly branded the Hong Kong people who organized support for the students in 1989 as subversives.

Ms. Ip's evident patriotic pride that China is so tolerant that it has never banned a group on grounds of national security is the least convincing of all the government's excuses. Only after some questioning would she reveal which law she thought Beijing was restraining itself from using for such a ban, the Regulations on the Registration and Management of Social Groups. This piece of legislation, not a criminal law, was passed by the State Council as part of a crackdown on China's nascent civil society in 1998, and was used to deregister a large number of nongovernmental organizations. But the real determination of which groups pose a threat to the state has always been made under the mainland's criminal code.

And plenty of groups fall into that category. One that might surprise Ms. Ip is the Falun Gong. She accused reporters of being "obsessed" with the group, and claims that none of the new laws is aimed at suppressing its local activities. But when Beijing banned it in October 1999, the Supreme People's Court said that the crackdown on [slanderous words omitted] was aimed at "those who organize, plan, carry out or incite crimes of splitting the nation, sabotaging national unity, or subverting state power and overthrowing the socialist system. . . ."

Ms. Ip says that a mainland ban on a group will not be a sufficient condition for the Hong Kong government to ban those who have "substantive ties" to it locally. She will still have to convince the courts that the local groups' activities also pose a threat to national security. And true, in normal circumstances she wouldn't want to attempt that lightly. But the judiciary in Hong Kong is not as independent as it once was. In a time of upheaval, Beijing might exercise its power to clarify the legislative intent behind Article 23, or might argue that a ban on a group is an act of state over which the local courts do not have jurisdiction.

In other words, the Hong Kong government now has the mechanisms by which it can strip away basic rights should the perceived need arise. The effects may not be felt for some time, or may be confined to a general chilling effect on free expression. But the provision of these laws doesn't come as much of a surprise. After all, there was never any chance that Beijing would let Hong Kong spread liberal values of freedom and democracy on the mainland. Or, as Hong Kong's new colonial governor, Tung Chee Hwa, has often put it, become a "base for subversion."