Wall Street Journal: A Dangerous Law

September 24, 2002
Major Business News

Today Hong Kong Chief Executive Tung Chee Hwa's cabinet will put the finishing touches on legislation that poses the most serious threat to free speech in the former British colony since its return to Chinese sovereignty five years ago. While the scope of the new laws against treason, sedition, secession and subversion remains unclear until the proposals are publicly unveiled, many in the city fear these measures will be used to suppress civil liberties.

The legislation is required under Article 23 of the Basic Law, the Beijing-drafted constitution that has applied in Hong Kong since 1997. But Mr. Tung was aware that any attempt to restrict free speech would have provoked outrage in the immediate aftermath of the handover, when the eyes of the world were still on Hong Kong and the local media less susceptible to self-censorship than today. So he waited until attention shifted elsewhere.

Now, with important elements of the local media muzzled by their proprietors, his government can be confident of facing more muted criticism than would have been the case a few years ago. And the recent cooption of the leaders of two major political parties into Mr. Tung's cabinet means the once-hostile legislature can be counted on to pass whatever his administration puts forward.

The proposed legislation will nominally take the form of a government consultation paper, with the final blueprint not due until after Hong Kong people have had several months to voice their views. But this is a public relations exercise. Since Beijing was consulted about the contents of the law long before the general public, there is little prospect of anything of substance being changed.

But that does not mean the Tung administration should be allowed to get away with twisting the truth in the months ahead. For instance, the government's spokesmen will no doubt claim it is simply replicating laws that exist in some democratic countries. This argument won't wash, for several reasons.

True, if you look hard enough you can always find a precedent to suit your purposes. The Hong Kong government has been scouring the world with this goal in mind for several years. In the last resort, there's always France, as was demonstrated last year, when Mr. Tung considered cracking down on local followers of the Falun Gong by copying that country's [...] law.

That is a false comparison, as our colleagues at Apple Daily -- one of the few Hong Kong papers still prepared to speak out on such issues -- pointed out in an editorial last Friday. After all, those democratic countries with comparable laws have one crucial safeguard denied to the people of Hong Kong: The right to vote out any government that abuses its authority.

They also have constitutional frameworks safeguarding civil liberties, and a judicial system that protects them. The same cannot be said of Hong Kong, where China has the final say over how to interpret the human rights promises in the Basic Law. Nor can the territory's courts be counted on to defend fundamental freedoms, after their initial attempt to do so was overturned by Beijing three years ago. In a subsequent landmark judgment upholding a law allowing the jailing of anyone who desecrates the Chinese flag, the territory's Court of Final Appeal laid down principles that would permit a wide range of restrictions on civil liberties.

It's worth remembering that the purpose behind these proposals is not to safeguard a democratic government from overthrow by a violent minority, as with the laws in other countries with which the Tung administration seeks to draw a misleading comparison. Rather it is to protect a communist regime from threats to its power, and outlaw expressions of support for those people, particularly in Taiwan or Tibet, who would rather be part of an independent country.

Even if the new legislation is less draconian than once feared -- for instance, because it draws on foreign laws instead of those that apply elsewhere in China -- there is no escaping the fact that it is still designed to strengthen the power of a dictatorial government. Indeed the only reason subversion is mentioned in Article 23 is because China added this to the final draft of the Basic Law as punishment for Hong Kong's support for the pro-democracy protesters who were gunned down in Tiananmen Square in 1989.

Nor should another misleading comparison by the Tung administration be allowed to pass unchallenged -- that the new laws are less restrictive than the outdated British legislation they ostensibly replace. The reality is that these old laws (which only cover treason and sedition) have long since fallen into disuse, and are probably no longer capable of being used to mount a successful prosecution. No attempt has been made to do so for half a century, and it is doubtful if the average Hong Kong citizen is even aware of their existence.

By contrast, the new laws are clearly designed to act as a deterrent. That is evident from the increasingly strident demands in recent months from the Beijing leadership, and some of its local allies, for legislation to protect China's national security -- even though Hong Kong is hardly a hotbed of pro-independence sentiment.

Even without the new laws, the years since 1997 have seen a ban on flying Taiwanese flags in the territory, increasing attempts to restrict demonstrations that might embarrass Chinese leaders and a campaign of official harassment against local followers of the Falun Gong. The new laws can only make the situation worse and take Hong Kong one step closer to being just another city in China, rather than the international metropolis which it still aspires to become.