Posted: Feb. 17, 2009
Hong Kong, February 16, 2009. The world is familiar with the tradeoff. Eroding personal freedom is the price governments everywhere ask citizens to pay in return for national security. The greater the perceived threat, the more power governments demand. Rarely, however, do we see the trade-off so sharply drawn as it is today in two recently re-acquired regions of China where citizens are being asked to shift from contemporary Western-style civil liberties to Chinese definitions that equate national safety with political security and impose constraints on all forms of political expression in the name of patriotic duty.
Hong Kong and Macau, both once part of Guangdong province, were returned to China in 1997 and 1999, respectively. Macau was occupied by Portugal in the 1500s and Hong Kong by the British in 1841. Today both cities are governed as Special Administrative Regions (SARs) within the People’s Republic and both are a decade into their 50-year period of transition under Chinese rule. Both were promised a “high degree of autonomy” and an unchanged “way of life” during that time, albeit with various guideposts designed to keep them on course as their integration within the Chinese body politick progresses. Most worrisome of all those markers are new laws that aim to bring both regions within the ambit of China’s national security regime.
As inalienable parts of the People’s Republic, Hong Kong and Macau are bound by Article 23 (identical in both their new Basic Law constitutions that govern the 50-year transition) to enact legislation prohibiting transgressions against the central government, committed in territory under their jurisdiction. Included are acts of treason, secession, subversion, sedition, theft of state secrets, and various political activities by foreigners. Already a bone of contention during the Basic Law’s drafting stage, Article 23 was included, according to reports at that time, allegedly as Beijing’s payback following the upsurge of protest over its reaction to the Tiananmen Square incident. Hong Kong’s Basic Law was finalized and promulgated in early 1990; Macau’s document followed in 1993.
HONG KONG’S EXPERIENCE
Hong Kong did attempt to introduce such legislation but it was carelessly drafted and promoted, resulting in a backlash so intense that 500,000 angry citizens took to the streets in protest on July 1, 2003. It was the second largest public protest in Hong Kong’s history, exceeded only by the marches in May and June 1989. Although the 2003 legislation was shelved, that experience marked a watershed in Hong Kong’s political evolution. Soon afterward decisions were made by the central government in Beijing that would delay indefinitely Hong Kong’s progression toward directly-elected local government, which is another of the Basic Law’s mandates. Since that time, Beijing officials and their decisions have intruded more overtly into the space Hong Kong initially assumed would be filled by its high degree of autonomy under the “one-country, two-systems” formula. And they have done so in ways that suggest the ultimate aim is full integration within China’s governing system by 2047, whether or not that was the official objective in the early 1990s.
Hence apprehensions are rising again amid news reports (based on insider information, always unconfirmed), that now routinely assume the dreaded Article 23 legislation will be re-introduced by Hong Kong’s chief executive, Donald Tsang Yam Kuen, before his term-of-office ends in 2012. Toward that end a new official strategy has been devised whereby Macau will go first with a toned down “lite” version of the legislation. Enforcement will also be “lite” at first, in order to convince Hong Kong that civil liberties will not be harmed.
These predictions are so far proceeding on course. Declaring it to be a constitutional duty and a sacred mission, Macau’s chief executive, Edmund Ho Hau-wah introduced the Protection of National Security draft bill last October ahead of a month-long consultation period. As expected, the bill provoked little opposition since Macau’s population, now numbering half-a-million, has always lived in closer harmony with mainland Chinese values of whatever hue, reflecting the different political cultures in the two cities that evolved under two different, Portuguese and British, versions of colonial sovereignty.
Hong Kong’s seven million people have a much stronger sense of their political rights, which is reflected in the two local legislatures. Macau’s pre-1999 demands for political protection were weaker than those in Hong Kong where activists created a popular democracy movement in the 1980s and 1990s that remains a dominant force in local politics. As a result, Macau’s legislature was designed even more conservatively than its Hong Kong counterpart and easy passage of Edmund Ho’s bill is a foregone conclusion. The final legislative vote is expected this month.
THE CHINESE PRECEDENT
Macau’s law nevertheless provides little reassurance because the main dangers contained in its Hong Kong predecessor are all still present. The aim is to introduce — for use in communities that have never been subjected to them — Chinese concepts of national political security based on what Macau promoters call the “relevant” Chinese counterpart. This is China’s 1997 criminal code, which incorporates proscriptions of the 1988 state secrets law and the 1993 national security law. All these laws bear the marks of predecessor codes, famous not just for protecting national security but also for targeting the political enemies of an ever-changing revolution. That Macau and Hong Kong must pass their own equivalents rather than come directly under the national laws is said to be a measure of their autonomous status.
The danger thus lies first and foremost in definitions, or more importantly in the distinctions between the current mainland Chinese and Western practices those definitions signify. The importance of such differences cannot be overemphasized. During the past decade, for example, Hong Kong has learned that the words “autonomy” and “elections” as used in the Basic Law are being defined by Beijing to mean something very different in practice than was originally thought. Application is in fact moving ever closer to definitions associated with the constitution of the People’s Republic. Meanwhile, Chinese officials are constantly admonishing Hong Kong to do a better job of studying the Basic Law. What they really mean is: shift from Western to Chinese perspectives and accept the law on that basis. But even more than elections and autonomy, Article 23’s proscriptions lie at the heart of a “way of life,” with its many safeguards for political expression that was supposed to be maintained for 50 years.
MACAU’S NEW LAW
In Macau’s version, only the most serious crime, treason (panguo), is defined narrowly enough to transcend the cultural divide. Chinese citizens who promote or participate in war or armed conflict against the People’s Republic risk 10-25 years imprisonment [Revised Bill, Article 1, final revision]. Anyone can be prosecuted for all the other crimes committed in Macau. Secessionist (fenlie) or “splittist” acts, to use the common Chinese translation, can be committed by means of violence or “other serious unlawful means,” in order to “separate from state sovereignty” any part of Chinese territory [RB, Art. 2]. Definitional uncertainties here include unlawful means and separation. Acts against transport and communications are cited but that could mean simply disrupting traffic on roads or the internet. As for separation, the Chinese use of the term should not be mistaken for its conventional Western association with territorial integrity.
Tibetans are regularly castigated as splittists although their leader, the Dalai Lama, now says he recognizes Chinese “sovereignty” over all of Tibet and wants only autonomy. The Chinese government, however, has chosen to define his calls for “genuine” autonomous government — not subject in all its aspects to Beijing’s unified centralized communist party-led administration — as “separation from state sovereignty,” which by their use of the term it is. Chinese accusations against Hong Kong democrats derive from the same logic. They are often called “traitors” for advocating “independence,” although they categorically do not. But they do advocate directly-elected local government and challenge one-party dictatorship, which is definitely subversive in communist party eyes.
Hence the crimes of subversion (dianfu) and sedition (shandong) are especially problematic. Subversive acts can be committed by violence or the same “serious unlawful means,” aimed at trying to overthrow the central government or inhibit its ability to act [RB, Art. 3]. The latter apparently refers to coercive tactics such as those currently being committed by protesters in China over a multitude of seemingly legitimate grievances. Later we often learn that the leaders have been charged with trying to subvert state political power, even if they are obviously not trying to “overthrow the socialist system” by demanding an end to one-party rule.
Sedition means instigating others. Up to eight years imprisonment can be imposed under the new Macau law for inciting “in public and directly” acts of treason, secession, and subversion [RB, Art. 4]. The Macau consultation document tried to distinguish between direct public incitement and “pure academic research or commentary,” which suggests why Chinese writers and editors so frequently find themselves on the wrong side of government censors if not the law itself. It also suggests just how difficult life will become for journalists and petitioners in Macau as they try to decide what may or may not be deemed a challenge to the authority of the central government and hence a violation of state security.
Article 5 on the theft (qiequ) of state secrets will create an even greater minefield of potential political errors not only because of the inordinate number of secrets. Article 5 also refers not just to theft but to “ferreting out” or investigating (citan) and buying secrets that will endanger national independence, unification, and internal or external security. These terms are identical to those used in section two of the 1997 criminal code. The formal mainland security categories are not mentioned but presumably they will be in force because the bill refers to confidential information about national defense, external relations, and “matters having to do with relations between the central authorities and the Macau SAR.” This last is a major potential pitfall because, as Hong Kong has slowly discovered, just about anything can be declared part of the relationship if Beijing so decides. Penalties will range from five to 15 years; even unintentional offenses will be liable to a three-year prison sentence thereby putting at risk all kinds of investigative research and reporting on a great range of topics. And there is more: like helping foreigners disseminate “false or distorted information,” preparatory acts, secret trials, and so on.
Once these laws are passed, in other words, local authorities will have all the power they need to enforce the mainland-style culture of political conformity they are now trying to create through persuasion alone. The great irony is that while many concerned Chinese are looking forward to a day when progressive change can bring an end to such constraints, Macau and Hong Kong are being forced to move in the opposite direction. They will be subject to the same kinds of laws that are a constant threat to all forms of critical political expression elsewhere in China. Hence for Macau and Hong Kong, the price of patriotism has suddenly grown much heavier than the 50-year guarantee of political protection originally implied because the local way of life will have changed irrevocably long before that guarantee has expired.
Suzanne Peper is an independent Hong Kong-based American writer. Her most recent book is Keeping Democracy at Bay: Hong Kong and the Challenge of Chinese Political Reform (Rowman and Littlefield, 2007/08).