Article 23

The government of Hong Kong has recently announced its desire to enact, as soon as possible, a set of repressive new laws aimed at criminalizing such vagaries as “sedition, subversion, and treason”. Passing the legislation, according to the territory’s Chief Executive Tung Chee Hwa, is “the duty of all Chinese”, and the proposed laws are to be rammed through Hong Kong’s Legislative Council (LegCo) by July 2003. The issue, known simply as “Article 23″ in the local media, has provoked a number of puzzled and outraged responses from many activist, legal, and journalistic sectors in the territory and around the Asian region. The proposals have also, predictably, prompted a steady stream of reassuring propaganda on the part of the government and its various organs around the former British colony.

Though the proposed legislation is new in its scale, as the powers it would give the Hong Kong government over the population are quite comprehensive, its sentiments are certainly not unprecedented. One need only look to Hong Kong’s recent past, and the nature of its current political system for a fairly telling background to “Article 23″- though this will necessarily be a little complicated.

Article 23 is a “national security” clause forming part of Hong Kong’s Basic Law. Serving as a framework around which specific legislation is created and enacted, the Basic Law is something like a micro-constitution for the territory. On July 1st 1997, Hong Kong ceased to be administered by a British colonial administration, and was “handed over” to China, to use the terminology employed at the time. The content of the Basic Law, a work-in-progress since the Sino-British Joint Declaration of 1984, was agreed upon before the “handover” by members of the National Peoples’ Congress (NPC) in Beijing, the Hong Kong Legislative Council (LegCo), and the outgoing British administration. After July 1997 and the creation of the Hong Kong Special Administrative Region of the Peoples’ Republic of China (HKSAR or just SAR for short), the Basic Law was, in theory, to provide Hong Kong with a degree of political autonomy vis-à-vis Beijing. As noted by a local NGO, the Hong Kong Human Rights Monitor, “Under [the] Basic Law… final judiciary authority rests with the court of the SAR, whose independence is also mandated by the Basic Law… Chinese national law does not generally apply to Hong Kong… in theory neither the LegCo nor the courts of Hong Kong need refer to the Chinese Constitution or Chinese laws”. This arrangement is sometimes referred to by the somewhat Orwellian phrase, “One Country, Two Systems”.

Logically, though, Hong Kong’s “autonomy” from China by way of the Basic Law was always going to be nominal at best. It would be quite irrational, after all, to think that such a small territory could exist through legislation alone as an entity that was politically and/or economically opposed to a massive and powerful neighbour. Accordingly, the political and legislative processes that have followed the July 1997 handover have been positively farcical for the vast majority of people in the SAR. Hong Kong’s first Chief Executive, Tung Chee Hwa, is a former shipping-tycoon hand-picked to rule by Beijing. In 2001 he was “re-elected” by way of a laughable ballot in which the right to vote was limited to 800 people, and the number of candidates totalled 1, since Mr. Tung stood unopposed. Mr. Tung and his advisors in turn select the official cabinet which is to largely staff the executive. A similar fiasco can be seen in the legislature. Every single member of the first LegCo following the handover, the so-called “Provisional Council”, was also unelected. The vast majority today continue to be completely unaccountable to members of the public.

“Hong Kong is a funny political animal,” observes Bruce van Voorhis of the Asia Human Rights Commission (AHRC), a local NGO. “It’s an executive-led government. Basically Tung Chee Hwa is accountable to 800 people, and, entering reality, Beijing is all he is accountable to. The legislature… well, even if they were all directly elected, the way the rules are set up, they basically have no power. They are there really to ‘monitor’ the government, to either approve or disapprove whatever bill the government makes. I mean, for a private member of LegCo to even introduce a bill, it can’t interfere with government finance, it can’t interfere with government structure, and it has to be approved by the Chief Executive before it is introduced!”

Clearly, then, the SAR government that emerged following the handover was- and continues to be- an autocratic institution answering to Beijing. This was the entity with complete power over interpretation of the Basic Law and the subsequent creation of coherent legislation.

To a degree, this much has been reported in the Western media, though most of it from the perspective that an aggressive “Communist” China is encroaching on a “free”, capitalist Hong Kong. Economic systems are inevitably tied up in the definitions of “free” and “dictatorial”, and the resulting diagnosis holds that the problem is one of Hong Kong “going Communist”. An adjunct to this thesis is that China is nevertheless changing, “opening up” to the “international community” by slowly embracing capitalism and insodoing becoming a more “democratic” society, and that this at least provides some hope for the future. This is a particularly confused point of view, but from the frequency of its reporting in the Western media, one can imagine its propaganda value for Western capitalist democracies. China is an autocratic, pro-capitalist state. History has enough examples to show that the two notions can not only co-exist, but are actually a preferential couple for investors and business elites. China, with its extremely powerful state, is most definitely popular with Western capitalists, judging from its recent entry into the WTO, and its position as one of the main sites for overseas capital investment and expansion. So it is virtually assured that Hong Kong will retain its capitalist economy, there is little chance of that changing with an “encroaching China”. In fact, international advertising campaigns hailing Hong Kong as the “world’s freest economy” have continued to be aggressively pursued throughout the post-1997 expansion of state power. The ‘change’ will be a continuance of this expansion, granting to the state phenomenal powers over the populace that is making way for a more and more direct rule from Beijing.

And how does Hong Kong’s international business elite, a very powerful sector of society, feel about the post-1997 “encroachment” of Beijing, and proposals like the current Article 23 legislation?
Predictably, there are some slight misgivings- over the possibility of state power interfering with “the market”. As long as this is avoided, a typical business-sector argument goes, the granting more power to a pro-business state will be very beneficial indeed for the elite investments. A fairly accurate barometer of elite opinions in Hong Kong is an unabashedly right-wing daily column in the Business section of the South China Morning Post by Jake van der Kamp. Regarding Article 23 legislation, van der Kamp is fairly blunt: “I have something to say for subversion. Hong Kong was founded on it, and much of our subsequent success is attributable to clever traders building up their capital by subverting the wishes of government… there is not much difference between free enterprise and criminal enterprise in the formative stages of a market economy”. As long as business activities are not considered “subversive”, then, van der Kamp “cannot find it in me [him] to object to the definition of subversion our lawmakers wish to adopt”. Moreover, he uses the issue to take a swing at government interference with market forces, saying this should be considered “subversion” as well- “government invites a more isidious form of subversion when it intervenes in… commercial life”. No objection to an autocratic state from the Capitalist International, then, as long as this state will look after business interests. There is little recent evidence to suggest that China will fail in this endeavour.

Now it is certainly clear that despite all this, things have not changed overnight- the Basic Law was not categorically scrapped following the handover, and it has been seen as necessary by China, for various reasons, to maintain a democratic façade. Though affording ordinary people no power at all in Hong Kong’s political structure, this façade of a “free society” has certainly allowed for many precious liberties that would not be tolerated in an area ruled directly by Beijing, or in many other places around Asia. Hong Kong still has a much less hindered press than Singapore, for example, and articles critical of the SAR or Beijing government are not yet met with overt state repression. But one feels that this has always been a sensitive and unpopular issue in official circles, and that an eventual change is almost inevitable.

Such a change, gradual but consistent, is certainly easy to observe, post-1997.  The steady erosion of the façade, the dilution of Hong Kong’s existing freedoms by the SAR government, and the ceding of more and more decision making power to the Central Government have been evident in a number of recent issues and government measures. Post-1997 amendments to the Societies and Public Order Ordinances, for example, were described by the Hong Kong Human Rights Monitor as “strikingly conservative”. These amendments granted the government, among other powers, the ability to ban societies that were seen as “prejudicial to the security of Hong Kong or to public safety or public order”. The erosion of the democratic façade was particularly clear during the “Right of Abode” issue, which set a precedent in granting final judicial authority to Beijing, virtually nullifying the power of Hong Kong courts. The new legislation proposed around Article 23, then, is a particularly frightening part of this continuing pattern. It is made all the more terrifying for people in Hong Kong because the Article itself, and the very idea of “national security”, was included in the Basic Law upon the insistence of Beijing just 10 months after the 1989 Tiananmen Square uprising and subsequent massacre.
 Despite this very recent and relevant history, the SAR government’s bizarre line on the issue has been that the new legislation is not only “necessary” but that it will be harmless to most people in the territory.

“The assurances offered by government authorities,” writes A. Lin Neumann, Asia Consultant for the Committee to Protect Journalists, “Say, in essence, trust us- we are good guys”.

Margaret Ng, a legislator representing the legal profession adds: “[Secretary for Security] Regina Ip and her colleagues are trying hard to present the proposed legislation as innocuous… something that will not affect the vast majority in Hong Kong”.
Much of this initial blitz of propaganda was centered around the issue of knowledge about the legislation. It was argued that people did not know the specifics of Article 23 legislation, that activists were unnecessarily questioning the intentions of the government without even having read the new laws, which were actually nothing to fear.

Despite being extremely irrational given the ample precedents in Hong Kong’s recent history, some of which I have described, this argument is also disingenuous. It is a plain fact that most people have not read the law- because a full copy of it has never been provided. All that the public and the legislature have been provided with by the executive branch is a so-called “consultation document” outlining the general nature of the legislation and the sorts of vagaries it criminalises. Even the release of a “white paper”, an exact copy of the law that allows both the public and the legislature to view and debate it, is being rejected by government officials as “unecessary”, even though such a move would be in keeping with official protocol. As Martin Lee Chu-Ming, legislator and Chairman of the Democratic Party observes, it is “impossible to have a meaningful discussion when the specifics are deliberately withheld”. Government officials are pushing, instead, for an immediate “blue paper” presented exclusively to the legislature for approval. This essentially means that most people in Hong Kong will read the law only when it is on the books. In the frighteningly cavalier words of Regina Ip, Hong Kong’s Secretary for Security: “people can read it even if it is printed on blue paper… I would have thought the most important thing is the content and not the colour.”

From the consultation documents alone, though, people do have some idea of what the new laws will entail. “Intimidating the PRC government”, whatever that means, will be an offence punishable by life imprisonment. The definitions of terms like “subversion”, “intimidation”, and “national security” will be determined by Beijing. Any organisation seen as endangering this “security”, as verified by a certificate from the Central Government, will be proscribed. Police will be given blanket powers to enter and search any location without a warrant. Hong Kong residents (even if they are foreign nationals) may be prosecuted for “subversive” acts they have been engaged inside or outside Hong Kong, and even tourists to Hong Kong can be prosecuted for subversion within the territory. The list of terrible possibilities goes on. There is also uncertainty over which judiciary, Hong Kong’s or Beijing’s, will have control over making decisions on cases pertaining to “national security” legislation.

Considering all this, the Secretary for Security’s words- and, of course, the very fact that the laws themselves have yet to be revealed in their entirety- are highly indicative not only of the accountability of the Hong Kong government, but also its derisive attitude towards the general population.

Indeed, it seems like official contempt for the general population has rarely been so obviously displayed, and the Secretary for Security has often been at the mouthpiece.  

“Will taxi drivers, Chinese restaurant waiters, service staff at McDonald’s hold a copy of the white bill to debate with me article by article?” she sneered in one of her now-infamous public outbursts.

Luckily, this spectacularly haughty official tone has not gone unmentioned in the press. “Her remarks were full of bigotry,” wrote Albert Cheng, a broadcaster, publisher, and columnist for the South China Morning Post. “In the eyes of officials… the public is incapable of intelligent debate”.

It is indeed bigotry, and such a blunt marking of class-lines by the government is excused with equally despicable justification- that “pragmatically” the contents of the law will concern only “experts”, and that ‘normal’ people need not worry about its implications. Such sentiments are clearly expressed in a letter by Ms. Ip’s Press Secretary, ‘apologising’ for any offence her aforementioned remarks caused the public: “She [Regina Ip] only wished to stress that, from experience, few members of the public except professional bodies or those directly affected, were interested in minute details…”

Back to the original government line then, that only a “few members of the public” will be “directly affected” by this repressive legislation. How exactly is this possible? Unless a sweeping exemption clause is included in the final wording of the bill liberating all but a “few” from its locus (unlikely), Ms. Ip is asserting that aside from the usual privileged ‘troublemakers’, no one will bother to challenge or contradict anything that she and her esteemed colleagues might wish. Most of the “vile working classes”, then, will just be satisfied with “bread and circus” politics, to paraprhase Adolf Hitler.

An exaggerated comparison? Perhaps. But it’s clear that a similar (and most sinister) general argument- that a certain class of people is better-suited to rule over a teeming horde of ignorant and uninterested commoners- is the at the crux of Ms. Ip’s claims. This argument is also the fulcrum of the fundamentally anti-democratic legislation she and her partners in the SAR government are peddling, the essential quality of which is to make individual citizens and their organisations increasingly accountable to the State. I shouldn’t have to bring up the sordid history of such “national security” legislation in Asia and around the world. The population not only has a right to question this, it is in fact implied by simple logic that the people should be sceptical upon official mention of such a law, even if they have not “read the whole thing”.

It’s hard to generalise, but this scepticism is definitely around, and people in Hong Kong are unnerved by the possibilities of this proposed legislation.

“I don’t just think it’s lawyers and academics who are concerned about this,” says Wong Kai Shing of the AHRC. “I think all people are aware of this document… I think they are really worried about it, but they respond in different ways. Some people speak out.”

A familiar problem arises, though, when it comes to a widespread and active rejection of the legislation.

The problem is, people feel like they are powerless to respond,” Wong continues. “Just talking to my friends or my family, people think ‘well, this is the kind of government we have. What can we do?’”

His colleague Bruce van Voorhis adds to this observation of general disillusionment with the current political establishment. “That’s down to the nature of ‘democracy’ here. … people think, ‘well even if you get elected to LegCo what are you going to be able to do?’ There has been a lot of talk in Hong Kong in the last year about the ‘irrelevance of political parties’”

Perhaps this is actually a cause for hope. Given general disillusionment with the failure of traditional politics, the stage is set for a concerted grassroots organizing effort that could help bring about a new democratic movement in Hong Kong. There are certainly other, popular forums for political activity that are more accountable and less hindered than LegCo.

“In many ways it is very, very restricted… but people in Hong Kong do have a lot of political space,” says van Voorhis. The possibilities are many and varied in this teeming and lively city. The press, for example, is one space that could certainly be effective in the context of these particular laws. Ironically Hong Kong’s non-traditional political space also owes a lot to its lack of physical space. “We’re a small place,” van Voorhis laughs. This realistically allows for face-to-face accessibility to all virtually all members of society, be it influential sectors who can then be effectively pressured, or disenfranchised and disillusioned sectors where organising work can be concentrated.

The government is itself trying to reach these disenfranchised sectors with its propaganda of condescending ‘reassurances’. It is up to local activists and NGOs to use the many non-traditional political avenues in Hong Kong, and channel popular disenchantment with Article 23 to defeat this odious and insulting legislation. In so doing, there is also the real chance of developing a stable, organic mass movement to confront the bigger issue of democracy in both Hong Kong and China.

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