The freedoms enjoyed under British law may soon be lost to the former colony, writes Anne Hyland. Six years after the handover to China, tension is mounting as the feared crackdown looms.
The atmosphere in Hong Kong is like a pressure cooker but you wouldn't know it from talking to Johann Wong. The enthusiastic civil servant boasts to Weekend AFR that none of his family owns a foreign passport. Why would they need to go anywhere? Margaret Ng, a barrister and member of the island's de facto parliament, the Legislative Council, tells a different story: Hong Kongers are clamouring to join the immigration queues, she says. "I hear a lot of people saying they cannot stay in Hong Kong. They have delayed their departure for five years. People had celebrated and congratulated themselves that since 1997 Beijing had not interfered. Now they think it's a problem."
Indeed, British rule appears to be ending now, rather than in 1997, as history books record. "When we were looking at the problem of 1997 and the change of sovereignty, what were people afraid of?" Ng asks. "We were afraid of the mainland Chinese system being applied to Hong Kong, particularly in things like political crimes." In July this year, six years after the handover, the Chinese system may become a reality.
New laws are to be introduced that threaten to radically change the way of life in Hong Kong, the way business is done and the protection of personal liberties. The government is proposing to widen its powers to act in cases of treason, secession, subversion and sedition, including theft of state secrets. These powers are contained in its mini-constitution, known as the Basic Law.
Sixty thousand people took to the streets in December to protest against the laws. A survey by the Chinese University's Hong Kong Institute of Asia-Pacific Studies found that nearly 70 per cent of people surveyed opposed the proposals and were concerned the laws were leading to serious social divisions. Such divisions are already apparent. Hong Kong's Catholic Bishop, Joseph Zen, was branded a "pathological saint" for arguing against the legislation, by pro-Beijing Legislative Councillor Leung Fu-wah. The main reasons those surveyed cited for rejecting the proposed measures were the "ambiguity" of the laws and a perceived "threat to human rights".
Academics, lawyers, religious leaders, foreign governments and the international business community have added their opposition. Their concern is that if the Western-style freedoms and legal system in Hong Kong are eroded, nothing will set the city apart from any other in Asia, or for that matter any major city in mainland China.
The proposed laws have also drawn the attention of the United States' President, George Bush, who emphasised the importance of "preserving the rights of Hong Kong's citizens", to China's President, Jiang Zemin, when they met in October.
Discussion about these laws has gripped Hong Kong for the past six months. Opponents' deep-seated fear is that the legislation may jeopardise the "one country, two systems" structure put in place after 1997. This guarantees Hong Kong a high degree of autonomy from China. Hong Kong's legal system differs from China's in that the judiciary is a check on the government, whereas in mainland China the National People's Congress ranks higher than the Supreme People's Court.
The Chinese government's definition of crimes such as treason and sedition is broad and it is frequently criticised in the West for its failure to respect human rights. In 2002, hundreds of people, including academics, journalists, union leaders and business people, were arrested, imprisoned or put into labour camps in China for trying to "overthrow the state" or "steal state secrets", despite challenges to the truth of such charges. Pro-democracy activists have been jailed for 15 years in some cases, and organisations including the China Democracy Party and spiritual movement Falun Gong are banned.
Not so in Hong Kong, where freedom of speech and the press flourishes for now. Falun Gong held an international conference in Hong Kong's City Hall in 2001. What if it were suddenly outlawed in Hong Kong, or if websites were blocked, or if reports by news organisations and stockbrokers were censored or prosecuted for criticising the governance of Hong Kong or Beijing on issues such as, for example, Tibet or Taiwan?
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Beijing has interfered in few cases. In the controversial right of abode case, it overruled Hong Kong's courts, refusing right of abode to children born to Hong Kong residents beyond the island. It also interfered last June, when China's arch-conservative vice-premier, Qian Qichen, publicly called on Hong Kong's government to enforce the laws on treason, secession, subversion, sedition and theft of state secrets, as required under Article 23 of Hong Kong's mini-constitution.
Qian inflamed the situation by stating that those opposed to the laws had something to hide, perhaps even "devils in their hearts". Since then, Qian has told Western governments to butt out of Hong Kong's affairs.
It is possible that the laws could be enacted and used only in real emergencies, if there were a threat to national security. It is a nice theory. But even the staunchest optimists have doubts, firstly, because of the urgency to implement the legislation and secondly, because the government has refused to issue a draft bill, known as a white paper, which would outline the laws in more detail than the consultation paper it released last September. The paper was available for public comment for three months until December 24 and more than 97,097 submissions were received.
The government's refusal to issue a white paper has made many Hong Kongers suspicious. "We've not seen in black and white how the legislation will be drafted," says the former chief secretary of Hong Kong, Anson Chan, who is usually reticent to speak out against the government. "The devil is in the detail," she warns.
It was a view echoed in December by the chairman of Bank of East Asia, David Li, who is the banking industry's representative in the Legislative Council. He and 20 other local and foreign bankers met with the Secretary for Security, Regina Ip, to express their concerns and demand a white paper. "He [Tung Chee-hwa, the government's Chief Executive] should produce a white paper and not leave people to guess and say trust me that is not right," Li said.
The government is not budging. It intends to issue a blue bill, in effect a final bill that is almost impossible to change when it goes before the Legislative Council.
The government has been vigilant in its efforts to hold consultative meetings with the public to try and defuse the emotive debate on Article 23, and it does have its supporters. About 30,000 people marched in favour of the proposed legislation in December, shortly after 60,000 marched against it. The government denied that it made up the numbers by offering a free lunch to the 30,000, as some suggested. [...]
Still, winning support has been tough. Tung has left most of the talking on the new laws to solicitor general Bob Allcock and Ip, the Secretary for Security, which has led critics to accuse him of weak leadership. And Ip has made unfortunate comments that alienated many people. She arrogantly argued that taxi-drivers and McDonald's waiters wouldn't be affected or interested in the new laws or a white paper. She also stated that democracy was not a fail-safe way of protecting civil liberties, citing the rise of Hitler under a democratic system.
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Hong Kong's parliament is mostly made up of government appointees; it doesn't have free elections. The Legislative Council could push the bill through with vague wording that makes the definition of the crimes of treason, secession, subversion, sedition and theft of state secrets as wide as the South China Sea.
The loose wording of the bill makes Tung's promise that individual freedoms will be protected cold comfort. While the consultation document says the freedom to demonstrate and assemble in public would be protected through "adequate and effective safeguards", what those safeguards are is not explained.
It should be noted that Hong Kong already has legislation covering national security, while treason, sedition and the theft of state secrets are covered by the Crimes Ordinance, the Official Secrets Ordinance and the Societies Ordinance. So it has already partly fulfilled its duties under Article 23. These duties require it to create laws covering crimes of secession and subversion. Nowhere does it state that the government needs to be so broad in its definitions.
For example, Article 23 requires the government to prohibit acts of "sedition" only in the sense of "incitement to armed rebellion". The consultation paper proposed widening the laws to include seditious publications. This week, the government backed down on this point, and said it would bend to demands to allow trial by jury for all accused of treason, secession, subversion, and sedition which in Australia is an archaic offence.
The proposed laws carry heavier penalties than existing legislation. For those who engage in sedition, the sentence is seven years in prison and a fine with an unlimited ceiling, rather than the current two years in prison and a fine of up to $HK500, 000 ($109,000). The wording of the treason laws suggests a person supporting a bid to put a trade embargo on China might be tried for treason Chinese nationals who tried "to intimidate or overawe" the state could be charged. In December, the Hong Kong Bar Association said the proposals were "based upon feudal notions of treason" that are not clear enough to protect fundamental rights and freedoms.
Equally worrying is that the government states in the consultation document that it might not be able to determine whether an organisation posed a threat to national security, and consequently "should defer to the decision of the Central Authorities based on the comprehensive information it possess".
Beijing branded the former leader of the Hong Kong Democratic Party, Martin Lee, a "subversive", but he is tolerated and even respected by the Hong Kong government. Would deference to the Central Authorities mean his party became suddenly illegal? It is not improbable. Lee has toured the US, Europe and the UK trying to win support to pressure Hong Kong into tightening the new laws.
One of the most alarming recommendations is the extension of police search powers to allow them to seize and search without a warrant. Police will, however, need a warrant to search the offices of journalists and financial institutions.
If the government introduces these laws in their current form, the damage to Hong Kong's economy and political system could be significant. It may not move towards universal suffrage by 2007, as is its right under the Basic Law, because the proposal for outlawing secession fails to recognise the possibility of a secessionist cause being a legitimate political demand.
The Australian Consulate and British Chamber of Commerce in Hong Kong have both warned that Hong Kong's reputation as the preferred financial centre in Asia may be tarnished. Its key advantage is that it acts as a gateway into China for many businesses that value its legal system, which is unique in the region. If this went, so might many businesses, to cities like Shanghai. That would be devastating for Hong Kong, which has one of the region's worst budget deficits, an anaemic economy, record unemployment and an unpopular leadership.
Why the government is enacting Article 23 now remains a mystery. Beijing may want to exert greater control over Hong Kong but the market reforms taking place in China are forcing its laws slowly towards the system Hong Kong has in place. Margaret Ng says it is "sheer stupidity and irresponsibility". "They [Hong Kong's government] are trying their very best to catch up with China's past. This is what angers me most."
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