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Hong Kong Basic Law Article 23

Hong Kong Basic Law Article 23 is the basis (parent statute) of a security law proposed by the Hong Kong Government. On September 24, 2002 the government released its proposals for the anti-subversion law. It is the cause of considerable controversy and division in Hong Kong, which operates as a separate legal system in accordance with the Sino-British Joint Declaration. Protests against the bill led to massive demonstrations on July 1, 2003 and in the aftermath, two cabinet ministers resigned and the bill was shelved indefinitely and finally withdrawn.

Under British rule, Hong Kong had a number of draconian laws regarding national security, which among other things allowed the Hong Kong government to ban organizations, which it did in regard to both the Communist Party of China and the Kuomintang. Although these laws had rarely been enforced since the 1960's, there was concern about the possible use of those laws after the handover to the People's Republic of China.

Article 23 of the Hong Kong Basic Law stipulates that the Hong Kong Special Administrative Region shall enact laws on its own to protect national security. At the time of the drafting of the Basic Law this was intended to be protective of civil rights in that it placed responsiblity for drafting these laws with the Hong Kong government.

The Hong Kong Government has drafted the National Security (Legislative Provisions) Bill to implement Article 23 and replace British colonial era laws on the subject.

The controversy over Article 23 began in mid-2002 when Qian Qichen, Vice Premier of the State Council, expressed Beijing's desire for Hong Kong to pass the required legislation quickly. This prompted the Chief Executive of Hong Kong Tung Chee Hwa to begin the process of drafting said legislation. Many in Hong Kong believe that Tung's responsiveness to this request, in contrast to what is commonly perceived to be his lack of desire, was due in part to the fact that Tung himself owes a personal debt to the PRC government: his family's shipping conglomerate Orient Overseas was bailed out for the sum of US $120 million by Chinese government-owned companies in the 1980s.

Concern with the legislation has arisen because of the authoritarian regime in the People's Republic of China: the new law invokes concepts of "treason" against the PRC in certain circumstances. Critics claim that this will erode freedom of speech rights. Suspicions have been exacerbated by the refusal of the government to issue a White Bill on the legislation, causing groups such as Amnesty International to declare that it "has grave concerns about the proposals in the government's consultation document and the lack of a draft White Bill which means that the public still do not know how the legislation will actually be worded". The government will be required to issue a blue paper containing the draft legislation when it presents the new bill to the Hong Kong Legislative Council ("Legco"), but this would leave no time for the public to voice its concerns, and the government may use its unelected majority in Legco to rush the bill through.

In the consultation document of Article 23 enactment, the following issues have caused concern:

Supporters of the legislation, the most vocal of which is Hong Kong's Secretary for Security Regina Ip view the introduction of the law as being quite ordinary and natural:

"Firstly, all countries have laws to protect national security but, in Hong Kong, the Mainland's national laws on this subject do not apply. It has been left up to the Hong Kong SAR Government to enact laws 'on its own'. This in itself shows a great measure of trust in Hong Kong people by the Central Government authorities. We are not introducing Mainland law into Hong Kong. We are developing our own approach. Can you imagine California or Connecticut enacting their own laws against treasonous acts or foreign organizations bent on the overthrow of the US Government?

"Secondly, we have a constitutional and legal obligation, under our Basic Law, to enact such laws. By doing so, we fulfill our role to implement 'One Country, Two Systems'. Five years after Reunification, it is time to move ahead on a matter that is regarded as extremely important by our sovereign. By doing so, we will remove once and for all the uncertainties that have cropped up from time to time over the past five years as to when, and in what form, Article 23 will be implemented.

"We also have a moral duty, as a Special Administrative Region of the PRC, to protect the security and sovereignty of our country. Why should Hong Kong people be under any less obligation to do so, or indeed feel uncomfortable in doing so, compared to citizens in other countries?

(Source: HK needs laws to protect national security by Secretary for Security, Mrs Regina Ip 28 January 2003)

Mrs. Ip has been criticised by the press and religious groups for her zealousness in pursuing the implementation of the legislation. In a politically clumsy move, Mrs. Ip asserted that because the ordinary people would not understand the legal language, there was no point in consulting them on it - in other words, because a few may not comprehend, let's keep everyone in the dark. This comment illustrates the extent to which authoritarian reflexes have become the natural habit of Hong Kong's unelected ruling elite.

Mr. Bob Allcock, Hong Kong's Solicitor-General, has been perceived as more even handed in his approach and has frequently argued that the laws proposed by the government are less restrictive than the colonial era laws that they are intended to replace

"Contrary to what some have alleged, the Bill to implement Article 23 of the Basic Law does not provide for 'secret trials'. Any criminal prosecution under the proposed new laws would be subject to normal trial procedures. In addition, if anyone were charged with one of the serious offences against national security, he or she would have the right to trial by jury."

(Source: There will be no 'secret trials' by Bob Allcock, Solicitor General 25 March 2003)

"The proposed new offence of treason will be narrower than the existing offence. It will therefore impose no new restrictions on freedom of speech. The only situations in which words could amount to treason under the proposals would be where the words instigate a foreigner to invade the PRC or assist a public enemy at war with the PRC. For example, if the PRC is at war with a foreign country, and a Hong Kong permanent resident broadcasts propaganda for the enemy, he may be convicted for assisting that enemy."

(Source:Freedom of expression is NOT under threat by Bob Allcock, Solicitor General 28 January 2003)

He has also pointed out that under the new laws, a banned organization can appeal the ban to the judicial system, a right not available under the previous laws.

In response, opponents of the bill, including Martin Lee Chu-ming have argued that a potentially repressive bill is more acceptable in a system of parliamentary democracy and that under British rule, the potential impact of security laws was minimized by the fact that the sovereign was a parliamentary democracy in which the political leaders would suffer political damage if they attempted to enforce these laws. The argument is that because the sovereign in the case of Hong Kong is authoritarian, there are fewer restrictions which prevent them from using badly drafted laws.

In response to the argument that Article 23 legislation is constitutionally required, opponents to the government bill point out that the Basic Law does not set up a specific time for passage of the legislation, and that the Basic Law also constitutionally requires that the HK government work toward a system of universal suffrage. Opponents argue that because both goals do not have time limits, there is no reason to implement Article 23 legislation before universal suffarage.

Another argument against Article 23 laws as drafted by the HK government has been given by John Kamm, who argues that the mechanism for banning organizations would have the effect of requiring that Mainland China be more repressive outside of Hong Kong. His argument is that since 1997, Mainland China has not had the legal concept of banning an organization on national security grounds, and that political repression in the PRC takes the form of government criminal charges against invididual acts. He argues that the HK government's draft of Article 23 law requires the PRC to set up a system of banning organizations on national security grounds and this would greatly hurt members of politically sensitive organizations who are not leaders. He points out that the PRC currently typically imprisons only the leadership of an organization, and merely harasses lower-level members because their behavior does not rise to the level of criminal charges. By passing Article 23 law, Hong Kong will require the PRC to develop the legal mechanisms to punish all members of a banned political organization, a power it now only has with respect to religious organizations such as Falungong.

Finally, at a time when Hong Kong's economy, inextricably linked to its property index, is in the doldrums, and SARS has had a major impact on life in the Special Administrative Region, the Government's focus on Article 23 has been perceived as inappropriate, especially since Hong Kong has been a stable place since the 1997 handover from the United Kingdom to the PRC and revision of colonial anti-subversion laws is not required.

Journalists in particular are concerned about the new law, especially in respect of journalistic criticism of the Central Government of the People's Republic of China and its complex relationship with Taiwan and Tibet, or other matters arising from the possession of official documents.

Religious groups are equally apprehensive about the law. The Falun Gong cult, which has been the subject of political repression in Mainland China (including the torture and detention of its members) on the basis of "security concerns" is worried that Article 23 will allow such political repression will extend to Hong Kong if the Falun Gong are regarded by Hong Kong authorities as a threat to the motherland.

Outspoken Catholic Bishop Zen has been a key figure in the debate over the legislation: on 15 May 2003 he instructed his church members to resist the introduction of the legislation. But his speech was criticized by some pro-PRC political commentators in Hong Kong, saying that the church should not be involved in political matters.

The normally neutral Hong Kong Bar Association (the organisation representing barristers) has also stepped into the fray: Bar Association chairman Alan Leong Kah-kit has publicly said, "The more you read into this document, the more anxious and concerned you get. There are some glaring ambiguities." Other organisations which have spoken out against the proposal include the Hong Kong Journalists Association, Hong Kong Confederation of Trade Unions, the International Confederation of Free Trade Unions, the Foreign Correspondents Club and the Faculty of Law at Hong Kong University. Members of the European Parliament, and officials of the United States Department of State, the United Kingdom, Canada, Australia, and New Zealand have expressed concerns about the Article 23 legislation.

Some banks in Hong Kong were reported to be considering relocating if the proposed Article 23 is passed, out of the fear that the laws would restrict the free flow of information. On December 7, 2002, it was reported in the press that ten foreign banks had told the government privately that the introduction of Article 23 would have disastrous consequences for Hong Kong, threatening its demise as Asia's financial capital.

On December 14, 2002 approximately 20,000 - 60,000 people demonstrated against the legislation. By December 24, 2002 190,000 people had signed petitions against the proposed enactment of Article 23.

On July 1, 2003, approximately 200,000 - 500,000 people demonstrated against Article 23, against the failing economy, and against Tung Chee Hwa, by marching from Victoria Park, Causeway Bay to Central Government Offices in Central. In response to the demonstration, two of the pro-government parties in the Legislative Council expressed reservations about the bill, and informal polls of the Legislative Council delegates suggested that the ability of the government to pass the bill was in doubt.

On July 5, 2003, Tung Chee Hwa announced a modified security law, which would remove the ability of the police to conduct warrantless searches, reduce the ability of the government to ban organizations, and include a "public interest" defense for publishing state secrets.

On July 6, 2003, Tung announced that the second reading of the Law was to be postponed after James Tien of the Liberal Party announced that he was resigning from the Executive Council and would have his party members vote for a postponement. As a result, the government would have insufficient votes to pass the law.

On July 7, 2003, Donald Tsang announced that there was no specific timetable for introducing the bill. In addition the Democratic Alliance for the Betterment of Hong Kong, the larger pro-government party, announced that it was reconsidering its participation in the government.

On July 16, Regina Ip resigned her position as Secretary for Security, on the grounds of "personal reasons", although political commentators linked the resignation to the protests over the Article 23 legislation. Her resignation occurred the same day as the one of the Financial Secretary Antony Leung.

Throughout the week Beijing has remained mostly quiet. News of the demonstration on July 1 was noticably absent from the Chinese-language versions of China's state media outlets such as the People's Daily and Xinhua Press Agency, however there has been reporting on the demonstration's political aftermath. Although it hinted on July 5, 2003 that it would like to see the bill passed quickly, it has not made any formal statements to that effect.

On 19 July 2003, President Hu Jintao was quoted by Chinese media as stating that:

"The central government is very concerned with the situation in Hong Kong...Only by maintaining Hong Kong's social stability, can a good commercial environment be safeguarded and can Hong Kong's advantages as an international finance, trade and transport center be maintained."

By 20 July 2003, President Hu had received Tung in Beijing with ceremony normally reserved for visiting heads of state, in what was perceived as a face-saving gesture for Tung. Hu emphasised that Hong Kong needed to pass Article 23 legislation.

On 23 July 2003, British Prime Minister Tony Blair, speaking at a British Chamber of Commerce luncheon in Hong Kong, commended the Sino-British Joint Declaration as being responsible for the peaceful nature of the demonstrations against the Article 23 legislation, and possibly with an eye to Beijing's concerns, emphasised that the demonstrations and Hong Kong government's peaceful response were evidence of the stability of China overall and the "one country / two systems" policy.

Some political analysts, particularly in Taiwanese newspapers, have speculated that the moderate approach that the Central Government has presented toward Hong Kong bears the imprint of more reformist thinking in the new fourth generation of leadership led by Hu Jintao and Wen Jiabao. It has also been suggested that a major influence on Beijing's reaction to the demonstrations is the strong desire to present specifically put a good face before the Presidential election in Taiwan in March 2004 and generally make Taiwanese public opinion more amenable to the cause of Chinese reunification.

On September 5, 2003, the Chief Executive of Hong Kong announced that Article 23 legislation would be withdrawn, that it would be reintroduced only after popular consultations, and that there was no timetable for its reintroduction.

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