Posted: Aug. 30, 2010
July and August were supposed to be for rest and recuperation after a year of non-stop campaigning to decide the political shape of things to come. Instead, the angry fallout from the Democratic Party’s political reform compromise was still raging when a new set of alarm bells began ringing in the distance. At first, everyone pretended not to hear. Now they have no choice. Beijing is pressing for a reintroduction of the dreaded Article 23 national security legislation that was shelved in 2003 after half-a-million angry citizens took to the streets in protest on July 1, 2003.
Hong Kong’s political community was preparing for an already full year: learning to live with a more clearly divided democratic camp; parsing the details of the electoral reform package agreed to in June; and preparing for the next 2011/12 election cycle. Another round of political debate is expected while details of the 2012 reformed electoral arrangements are reviewed and finalized. District Council elections will be held in November 2011 and Chief Executive Selection in March 2012, with the Legislative Council (Legco ) election following in September. Added to the list now is renewed debate over the most potentially dangerous of all political prospects.
Article 23 of the two Basic Law constitutions that govern Hong Kong and Macau contain the same provision, designed to protect the Chinese political system from the subversive dangers of their 50-year autonomous status as Special Administrative Regions. Accordingly, both must enact legislation prohibiting transgressions against the central government that might be committed in the two jurisdictions. The transgressions are acts of treason, secession, subversion, sedition, theft of state secrets, and certain kinds of foreign interference. Once Macau did its duty and enacted such legislation in early 2009, unofficial rumors indicated that Hong Kong would not be allowed to procrastinate forever. They indicated further that Chief Executive Donald Tsang aimed to reintroduce the shelved legislation before his term of office ended in 2012. After the political reform debate escalated into a year-long campaign, however, everyone assumed the task would be left to his successor — everyone except government officials in Beijing and Hong Kong, that is.
No sooner had the political reform debate reached its dramatic June 23-25 finale, than the rumors revived: the Hong Kong government had made plans to reintroduce the 2003 legislation along with its three late-stage amendments that had been added after the July First protest in a bid to placate critics. The idea was to take advantage of the Democratic Party’s new mood for compromise and try to bring the bill to a vote not just before Donald Tsang’s term ends in 2012 but before the coming election cycle begins next year. Unlike political reform, which needed a 40-vote super majority to pass, Article 23 legislation requires approval of only half the 60-seat council.
So advanced is this plan that the rumors are circulating complete with a new spin, designed to present the legislation in the same light as originally when officials were keen to emphasize that there was “nothing to fear.” The rumors now circulating are prefaced by the favorite adjective of its 2003 loyalist critics who called the amended version a “toothless” watered down shadow of its original hard-line self — and by implication nothing for democrats to fear.
On July 13 at the Chief Executive’s last question-and-answer session of the legislative year, he was asked directly whether he planned to reintroduce the bill and answered that he had no “concrete timetable” for doing so. But that did not stop the ever-present unnamed sources from revealing that Beijing was indeed pressing him on the matter and had already used intermediaries to canvass views across Hong Kong’s political spectrum. Final decisions are yet to be made but the plan seems to be one of the few things that politicians of all stripes can agree on since, with only a few exceptions, they have given it a collective thumbs-down. Press accounts now include a full range of the arguments, pro and con, for reintroducing the bill sooner rather than later. The case for sooner is based primarily on advantages of political timing from Beijing’s perspective; the case against derives primarily from local Hong Kong concerns.
Beijing has been encouraged by the Democratic Party’s willingness to compromise and by the relatively small size of this year’s July First protest. Commemorative marches have been held annually since the first big anti-Article 23 protest in 2003. Beijing wants to seize this window of opportunity to rush the bill through Legco during the final years of Donald Tsang’s term, as was done in Macau by its soon-to-retire Chief Executive in 2009. The primary consideration is to free Tsang’s successor from so potentially destabilizing a responsibility and the imperatives in Hong Kong are far greater than they were in Macau.
Beijing authorities are especially anxious that Hong Kong’s next Chief Executive should be able to win sufficient public approval for smooth-sailing into a second term. This is because they are now on record as having promised a “universal suffrage” election of some kind in 2017, which would be his second term if all goes well. No one has forgotten how Donald Tsang’s predecessor, Tung Chee-hwa, was obliged to step down “for health reasons” midway through his second term, due to open public disdain that culminated in the July First 2003 protest over his handling of the Article 23 legislation. Finding a suitable candidate under similar circumstances in 2017 is a prospect Beijing wants to avoid.
Added to the importance of this political timetable for Beijing are calculations about the current configuration of political interests and skills in Hong Kong. Although forecasters predict that the addition of 10 Legco seats under the new political reform plan will probably not alter the current pan-democratic/pro-establishment (23/40) balance, nothing is certain. And even if the balance remains unchanged, its composition may not: activist democrats (Civic Party and League of Social Democrats) stand to gain what moderate democrats may lose from the fallout over their political reform compromise. Cautious to a fault, Beijing prefers the devil it knows rather than the one it doesn’t. This calculation assumes, of course, that moderate democrats will now be more amenable to the legislation than they were in 2003.
Finally, Beijing has learned something about the differences between Hong Kong and mainland political skills and cultures. Central authorities now understand that Donald Tsang and his Secretary for Justice, Wong Yan-lung, have gained greater local trust and respect than their overtly pro-Beijing predecessors Tung Chee-wah and Elsie Leung. Hence rather than trust to the luck of the selection process draw, and an unknown future cast of characters, Beijing would rather use Donald Tsang’s team for the difficult Article 23 challenge.*
WHY NOT NOW?
Ironically, arguments against reintroduction of the Article 23 legislation are coming most forcefully from pro-establishment politicians and the pro-Beijing Democratic Alliance for the Betterment and Progress of Hong Kong (DAB). These parties and conservatives generally, including the pro-business Liberal Party, already expect a tougher-than-usual fight during the coming election cycle. Pan-democrats will try to be more competitive at the District Council level and the “new” centrist Democratic Party has its eye on the growing pool of “conservative independent” voters whom it hopes will compensate for the party’s anticipated losses among old supporters.
Reigniting the Article 23 issue now will only compound these negatives for pro-establishment politicians. It will also threaten their carefully-constructed majorities, heighten social tensions, and make governing Hong Kong that much more difficult. The DAB will bite the bullet if Beijing insists. But everyone also remembers how the Liberal Party suddenly lost its nerve after the massive 2003 protest march and withdrew support for the government’s national security bill, making its passage impossible.
As for the Democratic Party, speculation runs in two directions. Mainland intermediaries have reportedly tried to woo it with compromising logic. If Hong Kong agrees to the national security legislation, they say, Beijing won’t have to worry about subversives and may be more amenable to demands for “genuine” universal suffrage. Some Hong Kong government insiders, on the other hand, speculate that the Democratic Party may fight forcefully on this issue in an attempt to restore its credibility among long-time supporters angry at its having said one thing and then done another on political reform.
Legislator Cheung Man-kwong, a leader of the party’s moderate mainstream, implied as much when he reiterated the party’s long-standing support for “dissident” journalists, activists, and human rights defenders in China. They are routinely imprisoned for “subverting state power,” which is one of the political crimes scheduled for introduction. In practice, mainland definitions are infinitely expandable and anything from organizing a petition against one-party dictatorship to defending the rights of protestors can be interpreted as subverting state power. If Hong Kong had such a law, said Cheung, people would worry about being subjected to similar interpretations.
The Democratic Party was recently reminded of suspicions in this respect when observers noticed that the standard “subversive” banners calling for an end to one-party mainland dictatorship were not displayed as prominently as usual this year during the June Fourth candlelight vigil. Vigil organizers have always prided themselves on this particular symbolic challenge to the Chinese Communist Party’s authority. Democratic Party founder and vigil mainstay, Szeto Wah, denied the accusation in an angry exchange with League of Social Democrats chairman, Andrew To, and Cheung Man-kwong reinforced the message. He reminded reporters that the Democratic Party remains committed to the cause of mainland dissidents and is well aware of the threat posed by Article 23 to Hong Kong’s freedom of political expression. **
Why editors are going along so uncritically with the administration’s spin is also unclear. Perhaps they have not yet had time to dig out the old 2003 files. But once memories are refreshed and debate develops, Hong Kong will remember that even as amended, the 2003 legislation aimed to introduce concepts of national political security based on Chinese counterparts that threaten the freedom of political expression in important ways. *** The counterparts are China’s 1997 criminal code which incorporates proscriptions of the 1988 state secrets law and the 1993 national security law. All these laws still bear the marks of earlier codes and practices that not only protected national security but also targeted the political enemies of the Chinese Communist Party and its revolutionary order.
Unlike Hong Kong’s 2003 draft, Macau’s new law is one single composite version of the relevant mainland codes, with less draconian punishments. Consequently, local authorities there now have all the leeway and power they need to enforce the same range of legal concepts that are used to maintain national political security elsewhere in China. That Macau has not yet enforced them in the same way provides little reassurance that they will not be at some future date.
Hong Kong drafters evidently assumed the same concepts could be accepted more easily if they were transposed in the style of Hong Kong’s common law tradition. Hence the 2003 bill was itself a series of amendments to existing Crimes, Official Secrets, and Societies Ordinances. But the combination of mainland-style open-ended generalities with some attempt to include specifics actually added to the threatening prospect of laws aimed at criminalizing political behavior that Hong Kong takes for granted.
Ultimately, the Hong Kong government did make a number of cosmetic revisions in addition to the three main amendments. These latter: (1) deleted the provision that would have allowed police to search premises for incriminating evidence without a court order; (2) introduced a “public interest” defense for the unauthorized disclosure of official secrets; and (3) deleted the provision that anticipated the proscription of local branches of banned mainland organizations.
A host of uncertainties nevertheless remained. But the government then tried to rush passage of the entire complex and much-reworded legislation based on its first “blue bill” draft, without issuing a customary final “white bill” version to allow full public scrutiny of the finished product. If the authorities now aim to rush through the same bill in the same way during the coming 2010/11 legislative year, they should expect another upsurge of protest demanding prior publication of the full final draft. They will also need to translate important passages from their obtuse legalistic style into plain language.
The public will want to know, for example, what is and is not likely to be treated as “incitement”; how the curious crime of “handling seditious publications” is to be interpreted; and whether the June Fourth banners can be regarded as an attempt to “disestablish” the party-led political system or threaten its “stability.”
* For example: Ming Pao Daily, Hong Kong, Aug. 16; Apple Daily, Aug. 14, 18.
** For example: Apple Daily, Aug. 11; Ming Pao Daily, Hong Kong, July 12,Aug. 12; Xin bao (Hong Kong Economic Journal), Aug. 12, 20. The Szeto Wah-Andrew To exchange: Ming Pao, July 7, 9.
*** An account of the 2003 controversy is in Pepper, Keeping Democracy at Bay, chap. 16.
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