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STANFORD UNIVERSITY

ARTICLE 23: MOVING FROM “TWO SYSTEMS” TOWARDS “ONE COUNTRY”?

A THESIS SUBMITTED TO THE CENTER FOR EAST ASIAN STUDIES IN CANDIDACY FOR THE DEGREE OF MASTER OF ARTS

EAST ASIAN STUDIES

BY

VICKY HWANG

ADVISED BY PROFESSOR H. LYMAN MILLER

PALO ALTO, CALIFORNIA 2 JUNE 2004


Contents Acknowledgements ........................................................................................................................ 2 Chapter I Introduction ................................................................................................................................... 3 Chapter II The Basis of China’s Policy towards Hong Kong ....................................................................... 7 China’s Policy towards Hong Kong....................................................................................... 10 Chapter III Article 23 of the Basic Law ......................................................................................................... 15 Hong Kong’s Perspective: The Proposals, the Events and the Concerns .......................... 15 Timeline of Key Events ...................................................................................................... 15 The Government’s Proposals and the Events .................................................................. 18 The Concerns ...................................................................................................................... 25 Opposition to the Principle of Article 23 of the Basic Law......................................... 25 Article 23 and Hong Kong’s Political System .............................................................. 27 Opposition to the Consultation Paper .......................................................................... 31 Opposition to the Draft Legislation .............................................................................. 32 Opposition to the Legislative Process ........................................................................... 37 Chapter IV Beijing’s Perspective: Content Analysis of Article 23 News Coverage................................... 41 Enacting Article 23 – Hong Kong’s Duty ......................................................................... 42 Equating National Security with Nationalism.................................................................. 44 Respect the Integrity and Maintenance of One Country ................................................ 46 Article 23: The Timing ....................................................................................................... 48 Article 23 and the Falun Gong........................................................................................... 49 9/11 – A Favorable Global Climate and the Universality of Protecting National Security ................................................................................................................................ 54 Hong Kong Acting on its Own ........................................................................................... 56 Firmly Opposing Foreign Interference............................................................................. 63 1 July 2003: Beijing’s Silent Shock and Concern ............................................................ 66 Beijing’s Support for Tung ................................................................................................ 69 “The Real Story”: Beijing’s Political Deflection .............................................................. 73 Chapter V Conclusion.................................................................................................................................... 82 Postscript...................................................................................................................................... 86 Appendices ................................................................................................................................... 89 Appendix I ............................................................................................................................... 89 Appendix II.............................................................................................................................. 95 Bibliography................................................................................................................................. 98

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Acknowledgements

The research conducted in Hong Kong for this thesis was carried out at the Civic Exchange; and I wish to express my heartfelt thanks to Christine Loh, Esther Lam and Yan-yan Yip whose generous guidance and invaluable assistance in arranging interviews have made this thesis possible. I would also like to thank Dr. H. Lyman Miller, my thesis advisor, for the freedom and encouragement he gave me in writing this thesis, and his patience and invaluable advice when guidance was requested. I wish to express my deep gratitude to the individuals who generously made time to be interviewed for this thesis: Ms. Christine Loh of the Civic Exchange, Mr. Bob Allcock of the Department of Justice, Mr. Jeffrey Sexton of the U.S. Consulate General, Professor Michael Davis of the Chinese University of Hong Kong, Mr. Ambrose H. C. Lau of the Hong Kong Progressive Alliance, Mr. Ronny Tong of the Article 23 Concern Group, and my anonymous interviewee. Finally I would like to thank my family, Terence Loo, Grace Wong and Connie Chin for their advice, encouragement and assistance in completing this thesis.

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Chapter I Introduction In the summer of 2003, the Legislative Council (LegCo) of the Hong Kong Special Administrative Region (HKSAR) moved to introduce a set of new internal security laws that would have marked the most dramatic change in the territory since its reversion to Chinese sovereignty in 1997. These potentially intrusive new laws, known as Article 23 measures, which outlaw such acts as “subversion,” “sedition,” “treason,” “secession” and “theft of state secrets,” sparked fiery opposition and concern both locally and abroad. The Far Eastern Economic Review (FEER) asserted that with the implementation of Article 23, “the common-law foundation that made Hong Kong great is for the first time being intertwined with the more unpredictable and heavy-handed rule by legal decree introduced 53 years ago by the Chinese Communist Party.”1 The “one country, two systems” formulation as laid out in the 1984 Sino-British Joint Declaration and enshrined in the SAR’s Basic Law (Hong Kong’s mini-constitution) guarantees Hong Kong a high degree of autonomy from the PRC and the preservation of Hong Kong’s capitalist system for at least fifty years after the handover. Academics, lawyers, politicians, journalists and even businessmen feared that Article 23 was a portent of China’s move away from maintaining “two systems” towards pursuing greater integration of Hong Kong into “one country,” as suggested by the FEER. On 1 July 2003, half a million people marched into the streets of Hong Kong to voice their opposition to Article 23 and their discontent with the Hong Kong government. This marked the largest protest in the region since the 1989 Tiananmen incident. In a last

1

Philip Segal, “Business: The Biggest Victim,” The Far Eastern Economic Review, 19 December 2002, 30.

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minute decision precipitated by the resignation of a key official from the Executive Council (the cabinet which advises Hong Kong’s Chief Executive Tung Chee-hwa) in response to the protests, the Hong Kong government decided to delay the vote that would have implemented the proposed National Security (Legislative Provisions) Bill (hereafter the Bill) into law. Since September 2003, the Bill has been shelved with no timetable set for its reintroduction. However, the consensus among local experts and leading politicians is that Article 23 will definitely return in the future; when in the future remains an uncertainty. The certainty however, lies in the fact that that 1 July 2003 marked a watershed moment in the history of Hong Kong and in the development of its relations with Beijing.2 As such, Article 23 remains a crucial issue that deserves critical analysis in order to assess the development of Beijing’s long term policy in dealing with Hong Kong and the practical implementation of the “one country, two systems” formulation. What exactly does the Article 23 controversy tell us about China’s policy towards Hong Kong beyond the widespread speculation and hype? This thesis aims to examine the official PRC rhetoric regarding the Article 23 measures in order to decipher whether this new development indicates that the broad framework with which China deals with Hong Kong is changing fundamentally or whether the Article 23 issue is merely an instance of China continuing to follow its original policy towards Hong Kong but taking

2

As Ting Wai, (the author of the chapter titled, “HKSAR’s Relations with Its Chinese Sovereign,” in James C. Hsiung, ed., Hong Kong the Super Paradox: Life After Return to China (New York: St Martin’s Press, 2000) points out, the relationship between the Hong Kong SAR and the People’s Republic of China (PRC) is most accurately named “interior Mainland (neidi)-Hong Kong relations.” Naming the relationship “Hong Kong-China” or “Mainland-Hong Kong” relations is inaccurate because Hong Kong is already a part of China and a part of the Mainland. For the sake of simplicity, however, throughout this paper, I will use the term “Hong Kong-China relations” or “Hong Kong-Beijing relations.”

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piecemeal steps to adapt to changing circumstances. To achieve this, this study makes use of both primary and secondary materials. To begin with, the first section analyzes China’s longstanding Hong Kong policy and its historical basis through a review of secondary materials and an investigation into speeches made by Deng Xiaoping dealing with Hong Kong. In order to understand the significance of Article 23 in the relations between Hong Kong and Beijing, it is important to look at the issues and contentions surrounding the proposed national security laws and its implementation. What did the government propose in the legislation of Article 23? Why were these laws so controversial and why did they ignite such dramatic responses amongst almost every sector of Hong Kong society? What are the underlying macro-level problems in Hong Kong’s political system as highlighted by the enactment of Article 23? This section uses as primary sources publications distributed by pro- and anti-Article 23 groups, foreign and domestic media sources, and individual interviews conducted in Hong Kong with high profile government and non-government figures involved in the Article 23 debate. Finally, in order to decipher Beijing’s current Hong Kong policy as informed by the enactment of Article 23, I draw on primary sources through a content analysis of the Renmin Ribao (RMRB), which, as the voice of the Chinese Communist Party Central Committee, is China’s most authoritative newspaper, and two mainland-controlled Hong Kong news dailies, the Wen Wei Po (WWP) and the Ta Kung Pao (TKP). This analysis is supplemented with information gathered through personal interviews conducted in Hong Kong. The timeframe for the content analysis spans from February 2001 – when calls to implement Article 23 first appeared in news sources in the post-handover period – to

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December 2003, three months the after the government withdrew the Bill indefinitely. The interviews conducted for this study took place between January and April 2004. After examining China’s historical policy towards Hong Kong and the current Party-line as espoused by the RMRB and PRC-owned newspapers circulated in Hong Kong, this thesis argues that China’s fundamental policy towards the HKSAR, in fact, has not changed. Rather, China is merely continuing its longtime pragmatic approach in dealing with Hong Kong by acting within the framework of its existing policy and adapting to new developments in a changing local and global environment.

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Chapter II The Basis of China’s Policy towards Hong Kong In 1842, following the Chinese defeat in the Opium War, the Treaty of Nanjing ceded the island of Hong Kong to British sovereignty in perpetuity. In 1860, as a result of the Convention of Peking which marked the end of the Anglo-Chinese war, the tip of the Kowloon Peninsula was also ceded to British control indefinitely. This new agreement saw the colony’s land increase by another three square miles. In 1898, the British fearing that they would lose out in the European scramble for concessions during the SinoJapanese war, signed a lease with the Chinese which would give them the entire Peninsula of Kowloon for 99 years. This lease, which was signed for the newly acquired land known as the New Territories, expired on 30 June 1997. Hong Kong Island was the first territory the Chinese ceded in its nineteenth century confrontation with the West and it paved the way for other foreign powers to carve niches along China’s coast. China never forgot or forgave the humiliation. Thus, when Deng Xiaoping met with British Prime Minister Margaret Thatcher on the question of Hong Kong, he stated: On the question of sovereignty, China has no room for maneuver. To be frank, the question is not open to discussion. The time is ripe for making it unequivocally clear that China will recover Hong Kong in 1997. That is to say, China will recover not only the New Territories but also Hong Kong Island and Kowloon.3

3

Deng Xiaoping, “Our Basic Position of the Question of Hong Kong (September 24, 1982),” in Deng Xioaping on the Question of Hong Kong, trans. The Bureau for the Compilation and Translation of Works

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For many older generation Chinese leaders like Deng, the issue of Hong Kong was an emotional one. These leaders had built up a strong sense of nationalism through their revolutionary experiences, and they considered Hong Kong being under British rule as a remnant of Chinese humiliation under imperialism. The younger leaders of the PRC shared the nationalistic sentiments held by their elders as they formulated their opinions of Hong Kong based on communist views of modern Chinese history. Thus, China’s policy towards Hong Kong was firstly based on a historical need to gain back some of the national dignity it had lost under Western imperialism. On top of the historical and nationalistic basis for China’s policy towards Hong Kong, there was also a pragmatic aspect informing China’s policy direction. The leaders in Beijing recognized that Hong Kong would be a useful asset to help in their drive towards economic development and modernization. When Deng initiated the era of reform in the late 1970s and early 1980s, he was well aware that Hong Kong had the knowledge, expertise and resources China needed to realize his ambitious economic reforms. With their business and technological know-how, their management skills and their advanced telecommunications and transportation infrastructure, Hong Kong people had a large portion of the knowledge China needed to realize its goals as laid out in the Four Modernizations campaign.4 By the 1980s, Hong Kong had shown itself to be an international economic powerhouse. Not only had Hong Kong gained a reputation for being the prime location for foreign investment in Asia, with an annual per capita GDP of US$8,719 in 1980, compared China’s GDP per capita of US$972 that same year, Hong Kong itself could

of Marx, Engels, Lenin and Stalin Under the Central Committee of the Communist Party of China (Beijing: Foreign Languages Press, 1993), 1.

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serve as a massive source of investment capital into the PRC.5 Within the first decade of the opening of the Chinese economy, Hong Kong had become the PRC’s most important source of external investment and its largest trading partner.6 Throughout the 1980s, it became apparent to China that in order to continue with its economic development, it needed both capital investment from Hong Kong, and it needed Hong Kong to serve as an entrepôt to channel foreign trade and investment into the mainland. Thus, China had a pragmatic economic interest in maintaining continued prosperity and stability in the region. From a broader global political perspective, China’s handling of the Hong Kong question was also important as it played into China’s international reputation. The PRC central government was all too aware that allowing Hong Kong to collapse would greatly undermine China’s global reputation, not to mention the loss of face that would occur if in managing Hong Kong, the Chinese failed where the British had excelled. How China handled the Hong Kong issue would also have direct bearing on its prospects for reunifying with Taiwan. China’s handling of the Hong Kong question thus became an issue of great geopolitical importance as China was increasingly trying to integrate itself into the international community by the early 1980s.

4

Steve Tsang, Hong Kong: An Appointment with China (London: I.B. Tauris, 1997), 134. Center for Economic and Policy Research, “Per Capita GDP Growth, 1960-2000,” IMF World Bank, 20 May 2003, <http://www.cepr.net/IMP/Emperor_Table_1.htm>. 6 Steve Tsang, Hong Kong: An Appointment with China (London: I.B. Tauris, 1997), 134. 5

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China’s Policy towards Hong Kong In order to incorporate the historical, pragmatic and geopolitical components that formed the basis for China’s outlook towards Hong Kong, the leaders in Beijing, most notably Deng Xiaoping and Liao Chengzhi (the Vice Chairman of the National People’s Congress and the most senior Chinese official responsible for Hong Kong affairs before this death in the late 1980s), decided on two tenets for formulating their Hong Kong policy: exercising maximum flexibility in practical matters to maintain prosperity and stability, while remaining completely firm over the core issue of sovereignty.7 The result arrived in the form of the “one country, two systems” formulation. Originally envisaged as a way to solve the Taiwan issue, the “one country, two systems” concept had been in the making since the 1978 Third Plenary Session of the Communist Party’s Central Committee. 8 The core of the “one country, two systems” proposal entailed China resuming sovereignty over Hong Kong in 1997, while guaranteeing that the current capitalist system and way of life in Hong Kong would remain unchanged for fifty years after 1997. 9 In order to facilitate this, China was prepared to grant Hong Kong a high degree of governing autonomy from the mainland. The British were initially reluctant to accept this formulation because they had instigated the dialogue with China over the Hong Kong issue in the hopes of retaining sovereignty past the 1997 deadline. When it became clear that the Chinese were immovable over the issue of sovereignty and were more than willing to use military force

7

Ibid., 132. Deng Xiaoping, “We Shall Be Paying Close Attention to Developments in Hong Kong during the Transition Period (July 31, 1984),” in Deng Xioaping on the Question of Hong Kong, trans. The Bureau for the Compilation and Translation of Works of Marx, Engels, Lenin and Stalin Under the Central Committee of the Communist Party of China (Beijing: Foreign Languages Press, 1993), 12. 9 Ibid. 8

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to reclaim Hong Kong if necessary, the British had to concede that the “one country, two systems” formulation encompassed the best possible terms under which Hong Kong would return to Chinese control. In September 1984, the intensive Chinese-British negotiations, which had proceeded “with the common aim of maintaining the stability and prosperity of Hong Kong,” came to an end when Premier Zhao Ziyang and Prime Minister Thatcher signed the 1984 Sino-British Joint Declaration.10 The 1984 Sino-British Joint Declaration (JD) was the cornerstone of a set of Sino-British understandings that were then enshrined into Hong Kong law with the creation of Hong Kong’s mini-constitution, the Basic Law of the HKSAR.11 Because of China’s unwavering stance concerning the issue of sovereignty, the PRC saw the Basic Law as a subsidiary of its own constitution and thus deemed the drafting of the law to be a matter entirely up to Beijing. However, in order to quell fears in the territory, China followed along its policy of flexibility, allowing 40% (or 23) of the 59 member Basic Law Drafting Committee (BLDC) to be made up of local Hong Kong residents who had first been carefully selected by the Hong Kong and Macao Work Committee and approved by China’s top leaders. 12 This percentage of Hong Kong residents in the BLDC gave the PRC a two-thirds majority, thus providing the drafting committee with a democratic façade but not a sufficiently large representation of Hong Kong residents to block China’s will. The Basic Law Drafting Committee worked off of the two basic promises and objectives of the “one country, two systems” formulation: to preserve the existing 10 11

Michael Yahuda, Hong Kong: China’s Challenge (London: Routledge, 1996), 65. Steve Tsang, Hong Kong: An Appointment with China (London: I.B. Tauris, 1997), 200.

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capitalist system and way of life in Hong Kong for at least fifty years, and to guarantee a high degree of autonomy. For the leaders in Beijing, however, the real issue was how to make the Basic Law serve their interests best.13 Luckily for the Hong Kong people, it remained in the interest of Beijing to produce a document that would satisfy the Hong Kong people and the international community in order to preserve prosperity in the region. If the Basic Law went against the promises laid out in the JD by imposing greater central control, investors and the Hong Kong residents would immediately lose confidence in the region, resulting in a mass exodus of both skilled labor and capital. This would have left Hong Kong as more of a burden to the mainland than an asset. As Deng told Margaret Thatcher in December 1984: If we had wanted to achieve reunification by imposing socialism on Hong Kong, not all three parties [the Chinese, the British and the Hong Kong people] would have accepted it. And reluctant acquiescence by some parties would only have led to turmoil. Even if there had been no armed conflict, Hong Kong would have become a bleak city with a host of problems, and that is not something we would have wanted.14 Despite public rhetoric, “one country, two systems” was ultimately designed, and the Basic Law drafted, to serve the interest of the PRC as defined by the CCP – not to serve the interests of the Hong Kong people. As Wang Gungwu and John Wong write in their introduction to their book, Hong Kong in China, “one country, two systems” is “an

12

Steve Tsang, A Modern History of Hong Kong (London: I.B. Tauris, 2004), 239. Steve Tsang, Hong Kong: An Appointment with China (London: I.B. Tauris, 1997), 145. 14 Deng Xiaoping, “China Will Always Keep its Promise (December 19, 1984),” in Deng Xioaping on the Question of Hong Kong, trans. The Bureau for the Compilation and Translation of Works of Marx, Engels, Lenin and Stalin Under the Central Committee of the Communist Party of China (Beijing: Foreign Languages Press, 1993), 42. 13

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ingenious tool to meet the historic necessity of taking over Hong Kong in 1997 while retaining the utility of Hong Kong to keep pace with the modernization efforts of China […] the essence of one country, two systems is pragmatic.”15 As such, the end result was a Basic Law that was sufficiently vague to allow China a great deal of flexibility and freedom to be more or less stringent in exercising control over Hong Kong, depending on changing circumstances and the evolving external environment. As Deng instructed in his speech at a meeting with the members of the drafting committee in April 1987, “the law should not be weighed down with too much detail.”16 Thus, in preserving the interests of the PRC as defined by the CCP, the leaders in Beijing have used, and will continue to use, the flexibility of the Basic Law and the “one country, two systems” formulation ultimately towards its paramount goals for Hong Kong of staunchly maintaining sovereignty while using pragmatism to preserve prosperity and stability. Since Hong Kong’s retrocession to Chinese control, the operation of the “one country, two systems” formulation has been carefully monitored by both the international and local Hong Kong community. Political and economic analysts have closely followed the developments in Hong Kong to see whether the leaders in Beijing have been keeping to the “one country, two systems” formulation or shifting their policy direction to exercising greater control over the region. Because it falls between the “one country, two systems” separation, the Article 23 legislation involves an issue that has perhaps been the

15

Wang Gungwu & John Wong, Hong Kong in China: The Challenges of Transition (Singapore: Times Academic Press, 1999), 25. 16 Deng Xiaoping, “Speech at a Meeting with the Members of the Committee for Drafting the Basic Law of the Hong Kong Special Administrative Region (April 16, 1987),” in Deng Xioaping on the Question of Hong Kong, trans. The Bureau for the Compilation and Translation of Works of Marx, Engels, Lenin and Stalin Under the Central Committee of the Communist Party of China (Beijing: Foreign Languages Press, 1993), 55.

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most telling indicator of Chinaâ&#x20AC;&#x2122;s current policy stance towards Hong Kong since the PRC resumed control five years ago.

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Chapter III Article 23 of the Basic Law Hong Kong’s Perspective: The Proposals, the Events and the Concerns Article 23 of the Basic Law, which went into effect on 1 July 1997, states: The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.17 As a national security measure, Article 23 aims to protect the whole nation: that is, of the PRC and the HKSAR. However, as a law enacted into Hong Kong’s legal system, it aims to ensure that activities in Hong Kong do not jeopardize the interests and security of the mainland. Thus Article 23 introduces a new piece of legislation being implemented into one of the “two systems” to serve the interests of the “one country” as a whole.

Timeline of Key Events •

24 September 2002 o HKSAR government released proposal to implement national security laws in accordance with Article 23 of the Basic Law. o Start of three month consultation period where members of the public are invited to submit their views to the government on the proposal to implement Article 23 of the Basic Law. 24 December 2002

17

Government of the Hong Kong Administrative Region of the Peoples Republic of China, “Basic Law Full Text,” in The Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China Home Page, 1 July 1997; available from, http://www.info.gov.hk/ basic_law/fulltext/main.htm; Internet; accessed 15 April 2003.

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• • •

o HKSAR government ended the three month consultation. o The consultation generated nearly 100,000 written responses from the public. Both business and human-rights groups, as well as the UK and US governments registered concerns about various aspects of the proposals. 13 February 2003 o Secretary for Security Regina Ip announces National Security (Legislative Provisions) Bill (the Bill) draft to be gazetted on 14 February and will be submitted to LegCo on 26 February for the first and second readings. 14 February 2003 o Publication of the Bill in the Gazette. 26 February 2003 o The Bill introduced into LegCo for the first and second readings. o The Bill enters the Committee Stage. 3 June 2003 o Government announced a series of draft amendments to the National Security (Legislative Provisions) Bill, after careful consideration of the views of the Bills Committee and concerned parties. o Resumption of the second and third reading scheduled for 9 July 2003 LegCo’s last meeting for the current administrative year. 19 June 2003 o PRC Foreign Ministry spokesman Liu Jianchao says other countries should not make irresponsible comments on the legislation related to Article 23 of the Hong Kong Special Administrative Region Basic Law. o Liu made the remark at a regular press conference in response to a question raised by a reporter from Hong Kong. 1 July 2003 o Foreign Ministry spokesman Kong Quan said the legislative process of Article 23 of the Hong Kong Special Administrative Region Basic Law is democratic and transparent, and its enactment will not undermine the rights and freedoms of Hong Kong residents. o Chinese Premier Wen Jiabao met with principal officials of the HKSAR government in Hong Kong in the morning and signed the Closer Economic Partnership Arrangement (CEPA). o PRC Premier Wen Jiabao speaks at a reception for “The 6th Anniversary of HK's Return to the Motherland” at the Hong Kong Convention and Exhibition Center. o 500,000 people brave the sweltering summer heat to march for over four hours in the streets of Hong Kong against the Article 23 measures and other grievances with the HKSAR government. 3 July 2003 o James Tien flew to Beijing for talks with Liao Hui, the director of the government’s Hong Kong and Macau Affairs Office, and Liu Yandong, the head of the Communist Party’s United Front Work Department.

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• •

• • • • •

4 July 2003 o James Tien reports that central government officials in Beijing had no objection to deferring the final reading of the Bill. He advocates deferring until December. 5 July 2003 o HKSAR government announced three major concessions to concerns about the bill but insisted it would be enacted on Wednesday 9 July as scheduled. 6 July 2003 o Leader of the pro-government Liberal Party, James Tien, resigned from Chief Executive Tung Chee-hwa's cabinet because of the government’s refused the Liberal Party’s demand to defer the final reading of the Bill. 7 July 2003 o Tung holds emergency cabinet meeting and announces final reading deferred. 9 July 2003 o 30,000-50,000 people gathered around LegCo to call for Tung to step down and for a faster pace of democratic reform. 13 July 2003 o 15,000-20,000 people gathered around LegCo to call for universal suffrage for election of CE and all members of LegCo. 16 July 2003 o Regina Ip, secretary for security, and Financial Secretary Antony Leung tender their resignations. 19 July 2003 o Tung pays a duty visit to Beijing o Hu and Wen meet with Tung to show their support. o Ji Peding Commissioner of Ministry of Foreign Affairs of the PRC replaced by Yang Wenchang 12 August 2003 o New SAR Foreign Ministry Commissioner Yang Wenchang Meets Tung Chee-hwa in Hong Kong. o Sheng Huaren Vice Chairman of the NPC Standing Committee laid out “Four Point Expectations” on Hong Kong’s NPC delegates 21 August 2003 o Senior Chinese leader Jia Qinglin (a member of the Standing Committee of the Political Bureau of the Communist Party of China Central Committee and chairman of the National Committee of the Chinese People’s Political Consultative Conference) meets with a group of Hong Kong personages headed by Yu Kwok-chun o Says the central government has been very concerned about recent developments in the region. 26 August 2003 o China’s top legislator Wu Bangguo (chairman of NPC Standing Committee and member of the Standing Committee of the Political Bureau of the Central Committee of the Communist Party of China) fully affirmed the five-year fruitful work of the Basic Law Committee of HKSAR under the National People’s Congress (NPC) Standing Committee in its first term. 17


5 September 2003 o Tung announces that the HKSAR government has decided to withdraw the drafted National Security (Legislative Provisions) Bill, known as Article 23 of the Basic Law with no timetable set for its reintroduction.

The Government’s Proposals and the Events Although the Basic Law came into effect on 1 July 1997, steps to act on the national security measures stipulated in Article 23 did not begin until the fall of 2002. The outgoing colonial government had tried to enact these laws prior to 1997 but necessary Chinese government support was not obtained so there was no guarantee that any laws passed would be preserved after the handover.18 The Chinese side opposed any moves to enact Article 23 before the handover because felt it was up to the HKSAR government legislate the provisions, not the colonial government. However, Beijing did accept the enactment of the Official Secrets Ordinance in June 1997 to cover the crime of theft of state secrets. The colonial government also tried to sponsor laws to cover treason, sedition and subversion in the “Crimes (Amendment) (No. 2) Bill 1997” by creating the offenses of subversion and succession and liberalizing the law on sedition and treason. The Chinese government firmly condemned this move, and in the end the bill was not passed through LegCo as the majority of legislators felt these crimes were already sufficiently covered in existing legislation.19 During the first term of the Tung administration, there were no moves to enact Article 23 of the Basic Law. In the fall of 2002, just a few months into Tung’s second term, news media began reporting that the government was preparing to begin the legislative process for a national security bill. Comfortably into Tung’s second term, and 18

Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law, 2nd ed. (Hong Kong: Hong Kong University Press, 1997), 453. 19 Ibid.

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soon enough to ensure that any political fallout that resulted would have dissipated before the next LegCo elections in November 2004, on 24 September 2002, the government released a proposal to implement new security laws in accordance with Article 23. According to a government press release that day, Secretary for Security Regina Ip announced that Article 23 was about the protection of sovereignty, territorial integrity, unity and national security.20 In order to satisfy the constitutional duty to enact the provisions outlined in Article 23 of the Basic Law, the HKSAR government proposed the amendment of three existing ordinances already enacted in the HKSAR laws: the Crimes Ordinance; the Official Secrets Ordinance; and the Societies Ordinance. Treason, subversion, secession and sedition were dealt with by amending the Crimes Ordinance; theft of state secrets was dealt with by amending the Official Secrets Ordinance; and the proscription mechanism and appeal procedure were incorporated by amending the Societies Ordinance.21 According to the HKSAR government these proposals were made on the basis of existing laws and in accordance with well-established common law and international human rights principles. To begin the legislative process, the HKSAR government first published a consultation document outlining the principles involved in implementing Article 23 on 24 September 2002. A three month consultation exercise followed during which members of the public were invited to send in their views on the proposals by post, fax or email to the Security Bureau. The Security Bureau and the Department of Justice assured the public

20

HKSAR government, â&#x20AC;&#x153;Consultation paper on proposals to implement BL 23 released,â&#x20AC;? Proposals to implement Article 23 of the Basic Law, 24 September 2002 [government website]; available from http://www.info.gov.hk/gia/general/200209/24/0924197.htm; Internet; accessed 15 February 2003. 21 See appendix for full text of the original blue bill

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that they were willing to listen to suggestions and criticisms made. By the final day of the consultation period which ended on 24 December 2002, a total of more than 90,000 submissions were made by individuals and organizations on the Government's proposals to implement Article 23 of the Basic Law.22 In order to educate and inform the public, the Security Bureau distributed over 70,000 copies of consultation documents and over 1,000,000 copies of leaflets on the legislative proposals during the consultation period.23 On 28 January, the government released a compendium of submissions received on the consultation document to implement Article 23.24 That same day, Chief Executive Tung announced that, after an in-depth analysis and examination of the views received, the government had clarified the legislative proposals and set out a number of clear directions for the drafting work to start.25 The Security and Judiciary Bureaus asserted that many countries have laws to protect national security, many of which are even less liberal than those proposed in the Bill. In fact, the proposed legislation aimed not only to protect against certain crimes specified in Article 23 that are not adequately dealt with in current Hong Kong law, but also to liberalize existing draconian laws left over from Hong Kong’s colonial era under British rule. For example, the offence of treason in the common law system dates back to the 14th century; by common law standards, the crime of treason can be committed

22

HKSAR government, “Over 90 000 submissions received on BL23 consultation,” Proposals to implement Article 23 of the Basic Law, 24 December 2002 [government website]; available from http://www.info.gov.hk/gia/general/200212/24/1224196.htm; Internet; accessed 15 February 2003. 23 Ibid. 24 HKSAR government, “Government further clarifies legislative proposals to implement BL 23,” Proposals to implement Article 23 of the Basic Law, 28 January 2003 [government website]; available from http://www.info.gov.hk/gia/general/200301/28/0128198.htm; Internet; accessed 15 February 2003. 25 HKSAR government, “CE sets out legislative directions on Basic Law Article 23,” Proposals to implement Article 23 of the Basic Law, 28 January 2003 [government website]; available from http://www.info.gov.hk/gia/general/200301/28/0128149.htm; Internet; accessed 15 February 2003.

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simply by alarming a sovereign.26 As a high level source in the HKSAR government explained, simply replacing “sovereign” with “head of state” would be inadequate as national security laws are aimed at protecting the security of the nation, and not of the heads of state.27 Also, simply causing alarm should not be adequate for committing the crime of treason. The government therefore proposed to update and improve the treason provisions in Crimes Ordinance by restricting the substantive offence to levying war against the PRC Government by joining forces with a foreigner; instigating a foreigner to invade the PRC; or assisting by any means a public enemy at war with the PRC.28 On 26 February 2003, the National Security (Legislative Provisions) Bill was introduced into the LegCo for the first and second readings. 29 The Bill proposed to provide for: • • • • • • •

the offences of treason, subversion, secession and sedition; the prohibition of unauthorized disclosure of certain official information; the proscription of certain organizations if it is necessary in the interests of national security and is proportionate for such purpose; the power of entry, search, seizure, detention and removal by the police without warrant for the investigation of treason, subversion, secession, sedition and handling seditious publication; the election of trial by jury in respect of sedition by inciting violent public disorder, handling seditious publication and any of the offences of unlawful disclosure; the removal of existing time limit for prosecution of offences; and related, incidental and consequential amendments.30

On 16 April 2003, the LegCo Bills Committee on the National Security (Legislative Provisions) Bill invited members of the public and interested parties to express their

26

Hong Kong SAR Government, “Consultation paper on proposals to implement BL 23 released.” Anonymous ex-official, interview by author, 21 April 2004. 28 HKSAR government, “Consultation paper on proposals to implement BL 23 released.” 29 For main provisions of bill see Appendix I. 30 Hong Kong SAR Government, “Views Sought on National Security (Legislative Provisions) Bill,” Proposals to implement Article 23 of the Basic Law, 16 April 2003 [government website]; available from http://www.info.gov.hk/gia/general/200304/16/0416201.htm; Internet; accessed 30 April 2004. 27

21


views on the Bill by either submitting them in writing to the Clerk to the Bills Committee or, by making an oral presentation on 3 May 2003 during a three and a half hour window.31 On 3 June 2003, the Government announced a series of draft amendments to the National Security (Legislative Provisions) Bill after careful consideration of the views of the Bills Committee and concerned parties.32 The main amendments consisted of: • • • • • •

Extending guarantees of rights and freedoms Further tightening of sedition offences Removal of overlap between proscription mechanisms Special procedures for appeals against proscription Three-year prosecution time limit for seditious publications Authorization of emergency powers limited to the Assistant Commissioner level or above.33

The Secretary for Security Regina Ip announced the same day that the Bills Committee and government hoped to carry out the three readings for the National Security (Legislative Provisions) Bill at LegCo’s last meeting for the current administrative year, scheduled for 9 July. Despite strong public opposition, on 24 June the Bills Committee, with its strong pro-government majority, supported the government’s proposal to resume the second reading of the bill on 9 July 2003. On 1 July 2003, more than half a million people took to the streets in Hong Kong to demonstrate against the enactment of the Article 23 measures. Participants from all social and demographic classes braved sweltering heat to march for over four hours to voice their dissatisfaction with the Article 23 measures and

31

HKSAR government, “Views Sought on National Security (Legislative Provisions) Bill.” HKSAR government, “Government announces draft amendments to the National Security (Legislative Provisions) Bill,” Proposals to implement Article 23 of the Basic Law, June 3, 2003 [government website]; available from http://www.info.gov.hk/gia/general/200306/03/0603272.htm; Interner; accessed 30 April 2004. 33 For full text of amendments see appendix II 32

22


the Tung administration. This peaceful yet poignant demonstration marked the largest popular protest to have occurred in China since the 1989 Tiananmen demonstrations. On 5 July 2003, following this massive outpouring of public dissatisfaction, Chief Executive Tung Chee-hwa announced additional amendments to the Bill “to further allay the concerns of the public.” These amendments consisted of: • • •

Deleting the provision regarding a local organization subordinate to a mainland organization which has been proscribed by the Central Authorities. Introducing "public interest" as a defense for unlawful disclosure of certain official information, in order to protect and alleviate the concerns of the public, particularly those of the media. Deleting the provision which confers on the police a power to search without court warrant in the exercise of their emergency investigation powers.34

While the Tung administration conceded on the content of the Bill, it still refused to delay the resumption of its second and third reading scheduled for 9 July 2003. Despite strong public opposition, the administration still felt confident of its ability to get the bill passed: under Hong Kong’s current legislative arrangement, government sponsored bills are guaranteed enactment with the support of legislators from the pro-business Liberal Party and the pro-Beijing Democratic Alliance for the Betterment of Hong Kong (DAB) Party.35 In a shocking turn of events, late in the evening on Sunday 6 July, James Tien, chairman of the Liberal Party, resigned from the Executive Council after the Tung administration ignored his party’s demands that the final reading be delayed. Two days earlier, on 4 July, Tien had announced that he had flown to Beijing the previous day to hold talks with Liao Hui, the director of the PRC’s Hong Kong and Macau Affairs Office, 34

HKSAR government, “Chief Executive's transcript on Basic Law Article 23,” Proposals to implement Article 23 of the Basic Law, 5 July 2003 [government website]; available from http://www.info.gov.hk/gia/general/200307/05/0705158.htm; Internet; accessed 30 April 2004. See Appendix III for the final version of the National Security (Legislative Provisions) Bill.

23


and Liu Yandong, the head of the Communist Party’s United Front Work Department. From these meetings Tien got the impression that the senior leadership wanted the national security laws enacted as soon as possible, but they were flexible on the timing and thus had no objection to deferring the final reading of the Bill. Thus on 4 July, the Liberal Party asked the administration to delay the final reading until December to allow more time for consultations and discussion in the community. In response to the Tung administration’s continued refusal to delay the final reading, Tien resigned from Tung’s cabinet, signaling that the Liberal Party would vote against the Bill. The eight votes held by the Liberal Party, combined with the votes from the democrats and the independents, meant that the Bill would not be passed through LegCo. After calling an emergency cabinet meeting in the early hours of 7 July, Tung announced the government would defer the resumption of the second reading of the Bill.36 On 16 July 2003, the two key officials in Tung’s administration who had been aggressively targeted in the 1 July demonstrations resigned: Secretary for Security Regina Ip, who had been the most public defender of Article 23, and Financial Secretary Anthony Leung, who had been involved in a scandal earlier in the year over the purchase of a luxury car ahead of introducing a sharp rise in vehicle taxes. On 9 July and 13 July, further demonstrations involving tens of thousands of demonstrators took place voicing dissatisfaction with the Tung administration and calling for greater democracy. Finally, in a move that stunned local and international observers, on 5 September 2003 Tung

35

See HK’s political system section HKSAR government, “Statement by CE,” Proposals to implement Article 23 of the Basic Law, 7 July 2003 [government website]; available from http://www.info.gov.hk/gia/general/200307/07/0707019.htm; Internet; accessed 30 April 2004.

36

24


announced the withdrawal of the Bill with no timetable set for its reintroduction “so as to allow sufficient time for the community to study the enactment question”.37

The Concerns Opposition to the Principle of Article 23 of the Basic Law As Yash Ghai points out, Article 23 of the Basic Law is “unusual in that it not only permits limitations rights but it requires them.” 38 In principle Article 23 proved extremely contentious and difficult to legislate at the outset because the laws resulting would aim to maintain the integrity and sovereignty of China (one country) while maintaining the autonomy of Hong Kong (the distinction between two systems). In essence there was an inherent conflict between protecting the interests of the state and safeguarding the rights of the individual. According to Ronny Tong, ex-chairman of the Hong Kong Bar Association and member of the Article 23 Concern Group, 39 a balance had to be struck in legislating Article 23 and the government had a drastically different point of departure from that of concerned members of Hong Kong society.40 As he explained in his interview, bearing in mind elements unique to Hong Kong’s situation, any bill that seeks to protect the state necessarily conflicts with protecting the rights of the people. Being a lawyer, he felt that any offences restricting the freedoms of the individual should be strictly drawn up. For him the question lay in a balance between the protection of the state and the protection of

37

HKSAR government, “CE's opening remarks on Basic Law Article 23,” Proposals to implement Article 23 of the Basic Law, 5 September 2003 [government website]; available from http://www.info.gov.hk/gia/general/200309/05/0905155.htm; Internet; accessed 30 April 2004. 38 Ghai, Hong Kong’s New Constitutional Order, 452. 39 See Opposition to the Consultation Paper for the Article 23 Concern Group. 40 Ronny Tong, interview by author, Hong Kong, 16 January 2004.

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the people. He asserted that the protection of the state is different from the protection of the government; in a democratic society, you should not need to protect the government. But Tong felt the Tung administration took the Article 23 prescriptions and made their enactment as wide as possible to prevent the destabilization of the government and which went beyond simply protecting the state. As such, the Article 23 Concern Group took the position that the Bill restricted people’s freedoms more than was required by the provisions of under Article 23 of the Basic Law to protect national security. Compounding the difficulties in principle were the practical problems of the Article 23 exercise. As Serge Berthier pointed out in his article “The Article 23 Saga: An Indictment of the System,” the difficulties arose at the most fundamental level – with the differences in the legal systems of Hong Kong and the mainland.41 As a legacy from its former British colonial past, Hong Kong has maintained its system of common law. The PRC, however, follows a civil law system. This introduced significant differences in legal definitions which were further exacerbated by the fact that the laws had to be in both Chinese and English. In theory, the exercise in producing laws acceptable to the public would be straightforward if the people had faith in Hong Kong’s political system. However, because of the method of electing legislators into LegCo and the process through which laws are enacted, the Article 23 debate demonstrated that the Hong Kong people and even many legislators themselves have little faith in the political system when it comes to laws which could serve the interests of Beijing over those of the Hong Kong SAR.

41

Serge Berthier, “The Article 23 Saga: An Indictment of the System,” Asian Affairs 19, (2002/2003) 56.

26


Article 23 and Hong Kong’s Political System The Chief Executive’s Lack of Popular Support and Legitimacy to Rule The HKSAR is headed by a chief executive (CE) who is advised on major policy decisions by the Executive Council (ExCo), which is made up of 14 ex officio members and a number of non-official members appointed by the chief executive. The executive arm of the government is known as the Administration and is organized into the Government Secretariat and departments. The Government Secretariat Bureau formulates policies and initiates legislative proposals. The departments implement laws and policies and provide direct services to the community. Hong Kong’s first CE, Tung Chee-hwa, was elected by a 400-member Election Committee in 1997. This Election Committee is a sort of electoral college made up of members to represent basically the functional constituencies of occupational and professional groups.42 However, in the CE selection process, the State Council of the Chinese central government has veto power over the appointment of members to the Election Committee. As such, it is widely acknowledged that in the first election of the CE, the Election Committee was put together by Beijing in 1996 to ensure that the preferred candidate, Tung Chee-hwa, would win.43 In the 2002 election, this committee was increased to 800 members. However, since the incumbent was the sole candidate, there was no selection process. It is important to note that the process by which the CE comes into power is more akin to an appointment by the central government in Beijing than an election by popular

42

James C. F. Wang, Contemporary Chinese Politics: An Introduction (New Jersey: Prentice Hall, 1999), 196. 43 Ming Sing, “Legislative-Executive Interface in Hong Kong,” in Building Democracy, ed. Christine Loh (Hong Kong: Hong Kong University Press, 2003), 28.

27


support in Hong Kong. This point is crucial in understanding what went wrong in the implementation of Article 23 because the system has been set up in such a way that the CE ability to remain in office depends not on gaining the popular support of the people in Hong Kong but on retaining the support of the leaders in Beijing. Given this arrangement, Sonny Lo points out, the Tung administration has been criticized since the handover for adopting a compliant or subservient attitude towards Beijing. 44 Beijing, in trying outwardly to appear to preserve Hong Kong’s autonomy and adhere to the “one country, two systems” formulation, tends to avoid overtly voicing its wishes. This oftentimes leaves the HKSAR government trying to perceive the policies, attitudes and bottom-line of the central leadership. Such attempts may turn out to be inaccurate, especially in the event that communication between the HKSAR government and Beijing is insufficient. As such, given that Tung’s position hinges on staying in Beijing’s good graces, there is increased incentive for the CE to pander to what he perceives to be Beijing’s interests above those of Hong Kong. This generates a built-in conservative tendency on the part of the HKSAR government vis-à-vis Beijing and an inherent distrust amongst the Hong Kong people that their CE will govern with their interests at heart. As Frank Ching asserts, “there has been little evidence that the HK authorities have been willing to stand up for the rights and freedoms of its citizens where Beijing’s interests and sensibilities are involved.”45 Lack of Faith in the Legislative Council

44

Sonny Lo Shiu-Hing, “Five Perspectives on Beijing’s Policy Towards Hong Kong,” in Political Development in the HKSAR, ed. Joseph Y. S. Cheung (Hong Kong: Chinese University Press, 2001), 53. 45 Frank Ching, “The Handling of Sensitive Political and Legal Issues by the Hong Kong Government during the First Three Years of the HKSAR,” in Political Development in the HKSAR, ed. Joseph Y. S. Cheung (Hong Kong: Chinese University Press, 2001), 119.

28


The Legislative branch in the HKSAR government is made up of a unicameral Legislative Council (LegCo). The main functions of the LegCo are to enact laws; examine and approve budgets, taxation and public expenditure; and monitor the work of the Administration. In the most recent elections, 24 of the 60 LegCo seats were directly elected through universal suffrage by geographic constituencies, 30 members were elected by functional constituencies and six were elected by the Election Committee. It is important to note that in 1997, new electoral laws reduced the number of potential voters for the functional constituencies from over 2 million to about 200,000.46 The revamped 800-member Election Committee in 2002 also overlapped considerably with the functional constituencies. This gave the functional constituencies – with their relatively small voting base, narrow interests, and largely pro-Beijing/pro-business conservative outlook – a disproportionately large share of LegCo. The process of legislation in Hong Kong’s political system is also designed to ensure the interests of Beijing are preserved in enacting new laws. Generally speaking, the Administration has absolute power to introduce bills into LegCo to be enacted into law.47 Under Article 74 of the Basic Law, individual legislators can use private members’ bills to introduce bills unrelated to public expenditure, political structure or the operation of the government. However, written consent of the CE is required before the bills relating to government policies may be introduced.48 As such, even introducing bills not favored by the central government, and therefore the CE, is difficult. As Ming Sing

46

Ming Sing, “Legislative-Executive Interface,” 30. Serge Berthier, “The Article 23 Saga,” 56. 48 Government of the Hong Kong Administrative Region of the Peoples Republic of China, “Basic Law Full Text,” in The Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China Home Page, 1 July 1997; available from, http://www.info.gov.hk/ basic_law/fulltext/main.htm; Internet; accessed 15 April 2003. 47

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points out, the number of private members’ bills dropped dramatically after the promulgation of the Basic Law in 1997 from 47 between 1993 and 1997 to 5 between 1997 and 2001.49 Once a bill is introduced into LegCo, it goes through three readings. At each reading, the bill is passed to the next level if it obtains a majority of the votes of those members present. Once a bill gains a majority of votes after the third reading, it is signed by the CE and published in the Gazette and promulgated into the law. Because of the composition of the LegCo (the directly elected members make up less than an third of the legislature), the successful enactment of bills introduced by the Administration and strongly favored by Beijing are generally foregone conclusions, even if they lack public support. Given the lack of representation the wider public has within LegCo and the lack of accountability the CE has to the people, it is not surprising that both they and their representatives have had little faith in Hong Kong’s political system to produce a set of national security laws that would serve their interests above those of Beijing. Once the National Security Bill is enacted into Hong Kong law, the Hong Kong people, because of their lack of representation, have no recourse through which to protest any abuse in how the law is applied. Unlike, other democracies where public dissatisfaction with the performance or actions of the government can be voiced through the ballot box, in Hong Kong, the chief executive and the majority of the legislature are not accountable to the people through direct elections. As such once laws are enacted, there are limited avenues through which the Hong Kong people are able to object to how these laws are applied. Given Hong Kong’s semi-democratic political system, human rights groups, members of 49

Ming Sing, “Legislative-Executive Interface,” 31.

30


the Article 23 Concern Group and concerned members in Hong Kong society felt that each provision had to be clearly and strictly defined in order to prevent these laws from being open to interpretation and abuse in the future. Opposition to the Consultation Paper In response to the Consultation Paper and official statements issued by the HKSAR government and the Security Bureau, a group of high-profile lawyers, academics, political analysts and legislators formed the Article 23 Concern Group. The group’s mission involved educating the public on the issues and concerns surrounding the Article 23 legislation and lobbying the Executive Council and the Security Bureau to prevent legislation that would harm Hong Kong. To achieve their goals, the Article 23 Concern Group published a series of pamphlets expounding their concerns and positions on the government’s proposals on sedition, subversion, secession, state secrets and the proscription of organization and the role of the courts in November 2002. According to the Group, the Article 23 legislative proposals deserved critical attention by the people of Hong Kong and the international community because: the laws applied widely to all people in the HKSAR (including non-Chinese nationals) for what they did outside of Hong Kong; Article 23 offenses are not ordinary crimes but can be political crimes used to silence opposition; Article 23 offenses can be committed without war or acts of violence but merely through speech, publication or membership of a proscribed group; and because the legislative proposals endanger “one country, two systems” by bringing into Hong Kong the Mainland’s concept of national security and giving it force in Hong Kong courts.50 The Article 23 Concern Group’s overall concerns

50

Audrey Eu, Article 23 Legislation Proscription of Organization and the Role of Courts: What You Must Know, (Hong Kong: Article 23 Concern Group, November 2002).

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during the consultation period captured the major criticisms voiced by the different sectors of Hong Kong society concerning the consultation document and called upon the HKSAR government to: • • • • • • • • • • • •

Provide adequate time for public deliberation Publish a White Bill for further public consultation Modernize and liberalize existing laws Safeguard personal liberties by adopting a minimalist approach to drafting Clearly and narrowly define Article 23 crimes to prevent abuse Avoid the use of loose wording in the legislation, such as ‘threat of force’, ‘unlawful means’ etc. Protect the right of legitimate opposition expressly Ensure anyone charged with an Article 23 offence can choose to have trial by jury Do not increase penalties of existing offenses. All penalties must be clearly stated to be maxima and not mandatory Allow the court to play its proper role to try all issues whether of law or fact Do not extend police powers: there are already sufficient powers under existing laws for investigation and crime prevention Drop proposals to extend jurisdiction to non-Chinese Permanent Residents outside of Hong Kong.51

Opposition to the Draft Legislation Because of the numerous concerns raised by the Consultation Document, critics across the board called for the publication of the draft national security legislation in the form of a white bill – not a blue bill. A white bill contains the specific provisions in a piece of legislation in legal terms and traditionally is not intended for enactment, but for consultation purposes only. Generally speaking, according to the secretary for security in her reply to a question raised in LegCo on 23 October 2002, “a bureau would publish a white bill for public consultation if the bill in question is technically complex, or where the bureau is not yet ready to formulate its legislative proposals without canvassing views

51

Article 23 Concern Group, Article 23 Legislation: What We Want, (Hong Kong: Article 23 Concern Group, December 2002).

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on a draft bill.”52 According to critics of Article 23, the advantage of adopting the white bill procedure is that while the public knows exactly what is being proposed and that the government also keeps an open mind and will be receptive to suggestions for change.53 A piece of draft legislation in form of a blue bill however, is presented to LegCo for enactment, not for further consultation. Because LegCo members are severely restricted in the amendments that they are allowed to propose, significant changes to a blue bill would be extremely unlikely, especially in the face of government opposition. As Tong explained, A blue bill proposed by the government can’t be changed - not even the punctuation - without the consent of the government and has to be passed through the two-chamber Legislative Council which includes the functional constituencies that would never have approved any changes. A white bill is used to consult with the people. It lays out the issues and does not take a specific viewpoint. All preliminary conclusions can be changed.54 The government felt that the consultation paper that was released in December 2002 already served the purpose of seeking views on the proposals in principle to implement Article 23 of the Basic Law. As Bob Allcock, Hong Kong’s Solicitor General, explained in a personal interview,

52

HKSAR government, “LCQ5: Rules governing the decision to publish a white or blue bill,” Proposals to implement Article 23 of the Basic Law, 23 October 2002 [government website]; available from http://www.info.gov.hk/gia/general/200210/23/1023201.htm; Internet; accessed 15 February 2004. 53 Martin Lee, “Officials must reveal true colour of Article 23,” in Democratic Party Home Page, 1 October 2002; available from http://www.dphk.org/e_site/article23/021001.htm; Internet; accessed 20 March 2003. 54 Tong, interview.

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It is very unusual to have a three stage legislative process. Sometimes a white bill is issued before the blue bill. Sometimes the consultation paper is issued before the blue bill but very rarely, very very rarely, is there a consultation paper, a white bill and a blue bill.55 Allcock cited an example in recent years in which a three-stage legislative process was used and that involved a securities and futures bill that was a thousand pages long, incredibly complex and it involved the whole regulation of the securities industry. Because of its complexity, the government decided to have a three-stage approach. By comparison, the National Security (Legislative Provisions) Bill was relatively short, and the view was taken by the administration that the public would have ample opportunity to comment upon the legislation when the blue bill was published. As Allcock said, â&#x20AC;&#x153;in terms of allowing public feedback, the official position was that the blue bill was adequate.â&#x20AC;?56 In spite of widespread opposition, on 14 February 2003, the Security Bureau released the National Security (Legislative Provisions) Bill draft in the form of a Blue Bill. The refusal to issue a white bill prompted critics to accuse the HKSAR government of trying to rush through a very serious piece of legislation in order to satisfy a political agenda. Some legislators and political observers felt that by refusing to issue a white bill, the government sacrificed critical attention to detail in order to wrap up the enactment of this controversial bill in the current legislative year. Critics suspected that the government hoped any political fallout resulting from the Article 23 legislation that may be aimed at

55 56

Bob Allcock, interview by author, Hong Kong, 4 February 2004. Allcock, interview.

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pro-government parties would have enough time to dissipate before the next LegCo election in November 2004. It is also important to note that the November 2004 LegCo elections are considered especially crucial because the number of directly elected seats in the geographic constituencies will increase from 24 to 30, giving directly elected legislators one-third of the legislature for the first time. If legislators from the democratic and independent camps were to win all the directly elected seats in November 2004, combined with votes from the traditionally more democratically-minded functional constituencies such as the law constituency, the government’s ability to push through publicly unpopular laws such as the National Security (Legislative Provisions) Bill would be seriously undermined. Because of this, the HKSAR government was widely accused of pushing for Article 23 to be enacted by July 2003 regardless of its contents or people’s objections. Allcock stated he had no inside information about whether there was a desire to enact the bill quickly. Nevertheless, when questioned about the decision to issue a blue bill, he conceded that if there had been a desire to get the bill passed quickly, this desire would have factored into the decision of whether or not to issue a white bill. […] it may be, and I am not privy to this, it may be that the decision to try to get the thing passed within one year, you know clearly would have been relevant then. Issuing a white bill would have delayed the whole process and there was a desire to get the thing enacted before the end of the session. But I don’t think there was anything more sinister to it than that.

35


It’s not as if there was anything to hide because the bill as it came out, of course was much more liberal than the original proposals.57 According to the Article 23 Concern Group, the blue bill contained a number of major problems. Firstly, they felt the proscription mechanism went beyond the requirements as laid out in Article 23 of the Basic Law, thereby threatening the freedom of association and expression as well as the right to open justice and legal representation.

58

The Official Secrets Ordinance also threatened the freedom of

information and the freedom of the press because there was no public interest or prior publication defense. Free speech was further endangered by the definition of sedition as incitement to commit treason, subversion and secession. By that definition, incitement could be committed simply through speech without committing any unlawful acts. Furthermore, merely handling a “seditious publication” constituted an offense of sedition. Many parts of the blue bill were also vaguely worded, leaving the laws unnecessarily wide and open to abuse. Apart from treason, all Article 23 offences applied to all Hong Kong permanent residents regardless of their nationality or their current place of residence. Finally, the blue bill abolished important safeguards in the existing law such as limiting the prosecution of treason to within three years and sedition to within three months; and requiring police to obtain court warrants to approve police break-ins and the search and seizure of property.59

57

Allcock, interview. Article 23 Concern Group, Why the Blue Bill on National Security (Legislative Provisions) is Not Good Enough (Hong Kong: Article 23 Concern Group, April 2003), 1. 59 Ibid., 1-2. 58

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Opposition to the Legislative Process Once the consultation period ended and the results of the public consultation were released, further criticisms were raised regarding the process of enacting Article 23. A chief complaint centered on a feeling that the government had not conducted a genuine consultation. Anti-Article 23 groups and legislators felt the government had not taken opposition opinion into account. According to a study titled “Doing Justice to Public Opinion in Public Consultations: What to Do and What NOT to Do,” conducted by a group of academics from various universities throughout Hong Kong, the government purposefully manipulated the results of the consultation process to misrepresent the general opinion of the public regarding the proposed legislation.60 The research group found that the government had committed major mistakes in its consultation exercise which led to the false conclusion that the majority of the people supported the legislation. These mistakes included: 1) failure to provide alternatives for the public to choose from; 2) violation of the principle of impartiality; and 3) lack of transparency in methodology. Clearly, the turnout during the 1 July protest proved that the government’s assessment of public opinion had been flawed. In the aftermath of the 1 July protests, both sides of the Article 23 debate have accepted that much of what people were protesting centered not on the proposed legislation itself but on the process through which the Bill was being enacted into the law. According to the Solicitor General, who had been a part of the effort to legislate Article 23, 60

Research Team on the Compendium of Submissions on Article 23 of the Basic Law, “Doing Justice to Public Opinion in Public Consultations: What to Do and What NOT to Do – A Case Study of the Government’s Consultation Exercise on its Proposals to Implement Article 23 of the Basic Law,” in

37


With the benefit of hindsight, I think people do recognize that point, the process point may have been more important than the substance […] There was definitely a perception that it [the Bill] was being rushed unnecessarily – with no white bill, and the intention to get it passed before the end of the session. So I do think there was that perception of high-handedness. Whether or not that was justified, there was that perception. 61 He added ironically, that as the substance of the Bill became increasingly liberal during the legislative process, the opposition still got greater and greater. People felt that the government viewed their opinions with disdain and bullishly continued to implement the Bill without the consent or full consultation with the public. As Christine Loh, ex-Legislative Councilor, Chairman and Founder of the CivicExchange, and member of the Article 23 Concern Group commented in a personal interview, They (the government) seemed to have presumed that they can pass that piece of legislation with the support of pro-government legislators. So, “to hell with talking to all you folks,” well that was certainly the impression that the then Secretary for Security gave. By the time the 500,000 people got up and went to the streets, just look at what had happened: they’ve had a senior minister responsible, Mrs Ip, say all kinds of terrible things to them; secondly, they’ve seen that progovernment legislators in the legislature, just weren’t interested in having

University of Hong Kong in Public Opinion Programme, 10 June 2003 [website]; available from http://hkupop.hku.hk/english/resources/bl23/bl23gp/report/report.pdf; Internet; accessed 19 March 2004.

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further discussions; thirdly is, they’ve heard from people that they trust – the Bar Association, the Article 23 Concern Group – who said that there are real problems, and the other side have not been able to say, “these are not issues.”; then they had research from an independent group of academics to show that the government consultation process was all rigged, and that this was just not an honest way of assessment. All this information was in the public arena, and this was just not what the public could accept.62 The overwhelming consensus of those interviewed placed the process of enacting Article 23 rather than the content as the driving force behind those marching in the streets on 1 July. Had the government not set a timetable and not insisted on only issuing a blue bill, the people would have been more amenable to passing the law. In the end, public opinion did make a difference – not because it had an effect on the administration, but because it had an effect on the James Tien, the Chairman of the Liberal Party. Post-1 July surveys showed that most of the demonstrators were middle class and well-educated, many of them traditional Liberal Party supporters.63 1 July showed the Liberal Party that supporting the Article 23 legislation could have long-term electoral consequences especially since the upcoming LegCo elections would see an increase in directly elected seats as mentioned previously. As such, in heeding the calls from his constituents, Tien had no choice but to withdraw his party’s support for the Bill. However, all the parties interviewed for this paper agreed, the final decision to withdrawal the bill was still pragmatic. Tung decided to withdrawal the bill not because he was listening to the will of 61 62

Allcock, interview. Christine Loh, interview by author, Hong Kong, 19 March 2004.

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the people, but because without the votes from the Liberal Party, the Bill could not be passed through LegCo. Beyond the substance of the legislation itself and the process through which it was being enacted, symbolically, people in Hong Kong worried that by enacting Article 23 into law, the HKSAR government was allowing the central government to tighten its grip on Hong Kong, – eroding Hong Kong’s autonomy and chipping away at the promise of maintaining “two systems” amid “one country.” But was this Beijing’s intention in legislating Article 23? Did Article 23 really indicate a shift in China’s Hong Kong policy towards emphasizing “one country” at the expense of the “two systems”? To answer these questions, I now turn to a content analysis of the news coverage surrounding the legislation of Article 23 in PRC-controlled media.

63

David Lague and Susan Lawrence, “Tung in Trouble,” Far Eastern Economic Review, 17 July 2003, 14.

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Chapter IV Beijing’s Perspective: Content Analysis of Article 23 News Coverage The views expressed in the Hong Kong newspapers Ta Kung Pao (TKP) and the Wen Wei Po (WWP) can be used as an indicator for the official party line. Because these two Hong Kong-based newspapers are PRC-owned, they receive guidance from the CCP’s Propaganda Department and are subject to editorial review by Beijing. The Renmin Ribao (RMRB) is the voice of the CCP’s Central Committee and therefore it can be regarded as the most authoritative newspaper in China. Thus, the analysis of news coverage of the attempted enactment of Article 23 in these two mainland-controlled Hong Kong newspapers and the RMRB provides insight into Beijing’s motivations behind these national security laws. An analysis of the coverage of the Article 23 controversy found in TKP, WWP and RMRB leading up to the indefinite withdrawal of the draft security bill indicates that Beijing’s handling of the Article 23 controversy, in essence, shows a continuation of China’s longstanding HKSAR policy: exercising complete sovereign control over Hong Kong while doing whatever it needs to do to retain confidence in the region so as to ensure continued stability and prosperity. By moving to implement Article 23, Beijing is showing that Hong Kong is foremost a part of “one country” and so it cannot be a place where challenges to the PRC’s sovereignty are tolerated. However, the timing of the legislation, its “national security” label, the efforts to promote the image of Hong Kong acting on its own to enact these measures, and finally the withdrawal of the draft bill all point to Beijing’s continual pragmatic approach to dealing with Hong Kong: retaining

41


sovereignty while being flexible in meeting this end so as to retain confidence and therefore stability and prosperity in the region. Enacting Article 23 – Hong Kong’s Duty Evidence that, in implementing Article 23, Beijing is foremost declaring its sovereignty over Hong Kong can be seen in the extensive reporting on Hong Kong’s duty to enact Article 23 and the emphasis on characterizing Hong Kong and China as “one country.” Qiao Xiaoyang, vice chairman of the Legislative Affairs Commission under the NPC, clearly states Beijing’s declaration of sovereignty over Hong Kong through Article 23 in his article in the WWP, “To safeguard the state’s sovereignty and unity [emphasis added], under Article 23 of the Basic Law, the HKSAR is obligated to enact laws on its own to prohibit any act [that endangers national security].” 64 As written in the 16 December 2002 editorial of the TKP, “The legislation of Article 23 is the constitutional responsibility [emphasis added] of the government of the special administrative region as well as the civil responsibility of the vast number of Chinese citizens in Hong Kong.”65 For the leaders in Beijing, Hong Kong must enact Article 23 because it is the final piece of unfinished business from the handover that once resolved will fully restore Hong Kong to the excise of Chinese sovereignty. As Allcock, Hong Kong’s Solicitor General, put it, It’s a bit of a setback that we didn’t get this enacted because this is, it is quite a crucial sort of symbolic project in terms of completing this

64

Qiao Xiaoyang, “The Basic Law is the Guardian Angel Watching Over the Principle of ‘One Country, Two Systems,’” Wen Wei Po, 27 September 2002, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2002-0927; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003. 65 Editorial, “The Legislation of Article 23 Will Take Public Opinion into Consideration,” Ta Kung Pao, 16 December 2002, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2002-1216; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003.

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reunification process. I mean this is the only thing which is really outstanding in terms of finishing off the legal process. So with the failure to do this, it is quite important symbolically even though from a practical point of view it may not be that important because we don’t often get people committing these sorts of offences. But it does have a symbolic importance.66 A highly placed source in the Hong Kong government at the time of the legislation of Article 23 stressed that the leaders in Beijing wanted a set of laws protecting national security enacted as soon as possible; the actual content of the laws themselves were of lesser importance. The central leaders felt that they had already given the Hong Kong people a large concession by not requiring that the PRC’s national security laws be applied directly to Hong Kong’s system in 1997 through Annex III of the Basic Law.67 Recognizing the fundamental difference between the PRC’s civil law system and Hong Kong’s common law system, the central leadership conceded that applying mainland national security laws to Hong Kong’s more sophisticated system would be too blunt an instrument to tackle such a complex set of offenses. As such, they allowed Hong Kong to enact national security laws own its own in accordance with Hong Kong’s legal system. According to this source, the leaders in Beijing were very flexible about the actual content of the laws themselves. This could be seen in the fact that by the time the bill was withdrawn, Beijing had allowed so many concessions that it was arguably more liberal than the existing laws already in place in Hong Kong. For Beijing, it was more a 66

Allcock, interview.

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symbolic gesture that it felt needed to be completed. As the source explained, “Enacting Article 23 was Hong Kong’s duty to fulfill. For Beijing, it was a matter of face and pride – wanting Hong Kong to show to the rest of China that it was willing to fulfill this duty.” For Beijing, in legislating Article 23, Hong Kong is acknowledging its place in “one country”: accepting China’s sovereignty and its own duty to protect the whole nation’s security as its own. In requiring the legislation of Article 23, Beijing is foremost stressing its sovereign control over Hong Kong by indicating, “we are one country, so you, Hong Kong, should protect us as you would protect yourself.” Equating National Security with Nationalism Following along the lines of emphasizing Hong Kong and China as one, the TKP WWP, and RMRB have also tied support for Article 23 to a sense of Chinese nationalism. The RMRB on 27 June 2003 reported that Tung declared the enactment of Article 23 as “an essential task” under the Basic Law that “has bearing on national honor.”68 On 6 July 2003 Tung is quoted in the RMRB as saying the laws to protect national security are “a matter relating to the national dignity and the glory of the Chinese race.”69 The Hong Kong papers went one step further equating any criticism aimed at the proposals to implement Article 23 as being unpatriotic and excessively aligned with the West. In an editorial about a rally in support of Article 23, the TKP journalist writes: Why would the Hong Kong people not support and love such a motherland, and what reason is there for them to refuse to carry out the 67

Annex III of the Basic Law lays out which national laws apply locally to Hong Kong with effect from 1 July 1997. 68 “Enactment of Article 23 Essential under Basic Law: Tung,” People’s Daily Online in English, 27 June 2003 [newspaper online]; available from http://english.peopledaily.com.cn/200306/27eng20030627_ 118964.shtml; Internet; accessed 8 March 2004.

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obligations and responsibility as the citizen of the country by not enacting the law to protect state security? […] Being a part of the Chinese people, it is actually the greatest happiness and honor of the Hong Kong people to have the opportunity to enact Article 23 and to shoulder the responsibility of protecting state security.70 In dealing with criticisms of Article 23, both papers have vilified prominent critics of the proposed legislation, especially Martin Lee, the leader of Hong Kong’s Democratic Party, Bishop Joseph Zen Ze-kiun of Hong Kong’s Catholic Diocese, and Anson Chan, the Former Chief Secretary of the HKSAR. In an editorial reporting on Lee’s visit to Washington, Kuan Chao, a TKP reporter describes Lee’s reaction to President Bush raising the Article 23 issue at a meeting with Jiang Zemin: Look! Martin Lee’s reaction is just like a gray-haired female attendant waiting in the empress’s palace, who has been out of favor with the emperor for a long time and is occasionally recognized by the emperor when she is among a crowd of people. One careless glance of the emperor is enough to make the poor slave burst into tears of gratitude […] Martin Lee was like that – lying completely prostrate at the feet of the foreigners.71

69

“HK Government to Make Adendments [sic] to Article 23,” People’s Daily Online in English, 6 July 2003 [newspaper online]; available from http://english.peopledaily.com.cn/200307/06_119508.shtml; Internet; accessed 8 March 2004. 70 Editorial, “The Winter Enthusiasm in Support of Legislation Warms the People’s Heart,” Ta Kung Pao, 23 December 2002, trans. in World News Connection [database on-line]; document no. FBIS-CHI-20021223; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003. 71 Kuan Chao, “The ‘Evil Spirit’ Indeed Exists,” Ta Kung Pao, 28 October 2002, trans. in World News Connection [database on-line]; document no. FBIS-CHI-202-1028; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003.

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Similarly, because of Bishop Zen’s repeated public criticism of Article 23, the TKP calls him “anti-China in his bones” and accuses him of uttering remarks “which are aimed at opposing China and bringing disorder to Hong Kong.”72 In linking nationalism to the Article 23 issue, newspaper coverage indicates Beijing is stressing the unity and solidarity of the Chinese people, regardless of mainland or Hong Kong resident status. Aligning the Hong Kong people with the interests of the country as a whole under nationalistic sentiments carries the message of Hong Kong being an inexorable part of the mainland with the PRC ultimately holding sovereign control over the territory. Respect the Integrity and Maintenance of One Country The Article 23 issue has also exposed Beijing’s view that in exercising complete sovereign authority over Hong Kong, the people of Hong Kong must respect the integrity and maintenance of “one country.” Promoting views such as Taiwan independence have been classified as challenging the sovereignty of the PRC and so cannot be tolerated in the HKSAR. In an article published by the TKP, Tsang Hin-chi, Hong Kong’s only member on the Standing Committee of the National People’s Congress and the president of the Chinese Chamber of Commerce in Hong Kong, states: […] the media in Hong Kong should not interview “Taiwan independence activists.” Under “one country, two systems” Hong Kong should put emphasis on “one country” and not “two systems.” It should take on the responsibility of realizing the great cause of reunification of the nation. It should not give publicity to any people who engage in separatist activities 72

Li Shaowen “Tsang Hin-chi Accuses Joseph Zen Ze-kiun of Uttering ‘Out-Of-Place’ Remarks,” Ta Kung Pao, 12 October 2002, trans. in World News Connection [database on-line]; document no. FBIS-CHI-

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in the country. He added that the media should not interview people who are in favor of Taiwan’s independence. The media should be very careful even if they provide news coverage on that score, or else they should not provide any coverage.73 Article 23 aims to protect national security by preventing activities that may threaten the sovereignty and stability of the PRC from being carried out in the HKSAR. As a TKP editorial states, “The legislation of Article 23 ensures national security and prevents Hong Kong from being used as a base for separatist and subversion activities.”74 To some local and international observers, Article 23 seems to indicate increased censorship in Hong Kong and a shift in China’s policy towards the SAR. However, rather than a dramatic departure from previous policies, Article 23 ultimately aims to protect the sovereignty and stability of the PRC: two issues that have always been top priorities of China’s Hong Kong policy. Given the PRC’s paramount preoccupation with sovereignty due to its historic experience as a victim of imperialism, not tolerating activities that could threaten its sovereignty is very much in keeping with China’s longstanding policy towards Hong Kong. As detailed above, for pragmatic reasons, Beijing will be flexible in allowing the “two systems” to coexist so long as the overriding principle of sovereignty is not jeopardized. As Deng Xiaoping stated in April 1987, It is the policy of the Central Government that the interest of Hong Kong should not be harmed, and we also hope that nothing will happen in Hong

2002-1012; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003. 73 “Chinese Officials Say Article 23 of HK Basic Law not to Affect Freedom of Speech,” Ta Kung Pao, 17 September 2002, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2002-0917; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003. 74 Editorial “The Legislation of Article 23 Will Take Public Opinion into Consideration,” Ta Kung Pao, 16 December 2002, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2002-1216; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003.

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Kong itself that will harm its interest or the interests for the country as a whole […] After 1997 we shall still allow Hong Kong people to criticize the Chinese Communist Party and China, but what if they should turn their words into action, trying to convert Hong Kong into a base of opposition to the mainland under the pretext of “democracy?” Then we would have no choice but to intervene.75 Thus, Article 23 aims to ensure that freedoms enjoyed in the “two systems” do not threaten the overall interest of maintaining “one country.” Article 23: The Timing Previously, the degree to which mainland leaders accommodated challenges to its authority to be aired in Hong Kong depended on the local and international climate. In order to maintain confidence in the region, the immediate post-1997 period was not a prudent time to clamp down on such activities. Thus the timing of the implementation of the Article 23 measures provides strong evidence of China’s continued pragmatic approach in dealing with Hong Kong. Article 23 has been in effect ever since the Basic Law was officially enacted on 1 July 1997. However, in the first five years of China’s rule over Hong Kong, top officials in Beijing deemed this set of laws too sensitive to act on during that time. Careful to not make any moves that might harm confidence in the region and cause panic at the outset of resuming sovereignty, news coverage indicates that the CCP leaders had allowed a delay in acting on Article 23. As Qian Qichen vice premier of the State Council stated in 75

Deng Xiaoping, “Speech at a Meeting with the Members of the Committee for Drafting the Basic Law of the Hong Kong Special Administrative Region (April 16, 1987),” in Deng Xioaping on the Question of Hong Kong, trans. The Bureau for the Compilation and Translation of Works of Marx, Engels, Lenin and

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an interview with Hong Kong’s Asia Television network, “During the five years of the first-term

government,

the

article

was

not

implemented

because

successful

implementation required ripe conditions to ensure that the people had come to a similar understanding.”76 However, the inclusion of Article 23 in the Basic Law indicates that Beijing had always intended for the creation of this set of laws in the HKSAR. In fact, the first draft of the Basic Law did not include Article 23. It was added to the second version of the Basic Law following the huge outpouring of support in Hong Kong for the 1989 Tiananmen student democracy demonstrations. Thus, as early as 1989, the mainland authorities had already shown their intention to prevent Hong Kong from becoming a source of dissent and a base for subversives.77 The fact that Beijing waited for five years after the handover to act on these laws demonstrates the willingness of the PRC’s top leaders to be flexible in the timing and manner of implementing policy directives in order to achieve their overall goals. Article 23 and the Falun Gong Analyzing the relationship between Article 23 and the Falun Gong, a spiritual organization banned on the mainland, illustrates how the central government exercises the flexibility of the “one country, two systems” formulation to shift its level of tolerance for challenges to its authority depending on changing international and domestic circumstances. From the local news coverage found in the WWP and TKP, the highly

Stalin Under the Central Committee of the Communist Party of China (Beijing: Foreign Languages Press, 1993), 58. 76 “Qian Qichen: Only Those with Something Devilish to Hide Fear the [Anti-Subversion] Legislation,” Wen Wei Po, 26 October 2002, trans. in World News Connection [database on-line]; document no. FBISCHI-2002-1026; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003.

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publicized activities of the Falun Gong in January 2001 may have further convinced the leaders in Beijing that the time had come to begin enacting national security laws in Hong Kong. Prior to January 2001, official rhetoric regarding Falun Gong activities in the HKSAR had remained subdued and sporadic. On 23 January 2001, five followers of the Falun Gong in Beijing set themselves on fire in Tiananmen Square, bringing massive international media attention to this organization which Beijing has branded an “evil cult.” One week later, the heat was turned up on activities of the Hong Kong Falun Buddhist Society, a legally registered organization in Hong Kong. On 30 January 2001, an unnamed spokesman of the Central Government Liaison Office in Hong Kong issued a statement saying, The Central Government will not allow any organization or anyone attempting to turn Hong Kong into a centre for Falun Gong activities, and using the territory as an anti-China base, damaging 'one country, two systems' and Hong Kong's stability and prosperity.78 The following day, Xu Simin a CPPCC standing committee member, stated that the SAR had been too soft on the sect and called for a tougher stance like that adopted in Macao. According to an editorial in the TKP,

77

Michael Yahuda, “Hong Kong’s Future: Sino-British Negotiations, Perceptions, Organization and Political Culture,” International Affairs 69, no. 2 (April 1993): 245-266. 78 “Beijing has issued a strong warning to the Falun Gong organisation in Hong Kong against using the SAR as an anti-China base to "damage one-country, two systems".” Imail, 31 January 2001, in World News Connection [database on-line]; document no. FBIS-CHI-2001-0131; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 8 January 2003.

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[…] the “Falungong” are involved in using Hong Kong as a base for subversion against China, and that this has already created a major sovereignty problem.79 In early February 2001, the TKP began citing Falun Gong activities as evidence for the need to enact Article 23. Notably, the first mention after the handover of the need to enact Article 23 came in reference to clamping down on Falun Gong activities in the SAR.80 On 5 February 2001, an article in the TKP “Well Water Anthology” column stated that, Article 23 of the Basic Law, though it has yet to be passed as legislation, has its binding authority, and the “Statutes for Social Organizations” explicitly states that any activities detrimental to national security and public order are prohibited. The facts are all there to prove that activities of the Hong Kong Falun Buddhist Society are against China and the central authorities, and they are detrimental to our national security as well as Hong Kong’s society. 81 On 23 September 2002, the TKP published another installment of the “Well Water Anthology” titled, “Most Opportune Time to Enact Law According to Article 23 of the Basic Law,” in which Guan Zhao refers to Falun Gong elements waiting for an opportunity to make trouble through making use of Hong Kong to collude with forces abroad.82

79

Editorial, “It Is Not True That the 'Falun Gong' in Hong Kong ‘Is Not Involved in Politics,’” Ta Kung Pao, 3 February 2001, trans. in World News Connection [database on-line]; document no. FBIS-CHI2001-0203; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003. 80 Guan Zhao, “Well Water Anthology: Facts on Its Danger Are All There,” Ta Kung Pao, 5 February 2001, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2001-0205; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003. 81 Zhao, “Well Water Anthology: Facts on Its Danger Are All There.” 82 Guan Zhao “Well Water Anthology: Most Opportune Time to Enact Law According to Article 23 of the Basic Law,” Ta Kung Pao, 23 September 2002, trans. in World News Connection [database on-line];

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As Loh points out, the central government has long been concerned with curbing the Falun Gong’s activities in the region.83 Having this nationally banned organization operate legally within the “one country” has been a source of irritation for the central leadership for some time. Article 23 of the Basic Law does not in fact require the Hong Kong government to outlaw organizations it deems harmful to national security. Article 23 states, The Hong Kong Special Administrative Region shall enact laws on its own […] to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies. However, the government nevertheless decided to include a proscription mechanism84 for organizations deemed a threat to national security, a step that suggests that Beijing had the Hong Kong branch of the Falun Gong in mind when it began to push for the enactment of Article 23. The rhetoric in the mainland-controlled press calling for the enactment of Article 23 immediately following the 30 January 2001 incident in Tiananmen Square lends further credence to this interpretation. In the end, the removal of the proscription mechanism was one of the three amendments to the National Security Bill that Tung announced in response to the 1 July protests. However, according to Michael Davis, member of the Article 23 Concern Group and professor of law at the Chinese University of Hong Kong, the proscription

document no. FBIS-CHI-2002-0923; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003. 83 Loh, interview. 84 See Appendix I “Proscription of organisations endangering national security”.

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mechanism was a key provision in the National Security Bill which the Hong Kong government adamantly refused to concede on.85 The Hong Kong government expended considerable efforts in dispelling the notion that Article 23 had been enacted to curb the Falun Gong’s activities in the territory. Throughout the legislative process, the RMRB heavily stressed the National Security Bill’s full compliance with international human rights conventions.86 As Tung announced in the RMRB, The freedoms and rights enjoyed by Hong Kong residents will not be affected in any way by the laws to be enacted in accordance with Article 23 of the Basic Law.87 The RMRB coverage centered on stressing that the national security bill specifically provides that the interpretation, application and enforcement of the provisions implementing Article 23 shall be consistent with Article 39 of the Basic Law which guarantees an adherence to international human rights standards. The RMRB made no explicit reference to the Falungong and its activities in Hong Kong. However, the TKP did report Timothy Tong Hin-Ming, the Acting Permanent Secretary for Security, as saying, “The government has no intention of targeting political dissent or advocacy. Nor is it targeting particular people or groups. There is absolutely no hidden agenda.”88 Ruling out the possibility that Falun Gong activities factored into the decision to begin legislating Article 23 would be difficult, however, given that Article 23 of the 85

Michael Davis, interview with author, Hong Kong, 10 March 2004. “Rights, Freedoms of HK People Unaffected by BL23 Legislation,” People’s Daily Online in English, 16 December 2002 [newspaper online]; available from http://english.peopledaily.com.cn/200212/ 16eng20021216_108554.shtml; Internet; accessed 8 March 2004. 87 “Article 23 of Basic Law Won’t Affect People’s Rights, Freedoms: Tung,” People’s Daily Online in English, 17 December 2002 [newspaper online]; available from http://english.peopledaily.com.cn/ 20021217_108571.shtml; Internet; accessed 8 March 2004. 86

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Basic Law did not require a proscription mechanism but one was included in the draft National Security Bill. In addition, as outlined above, the first mention of the need to implement Article 23 of the Basic Law in the post-handover period came in reference to curbing Falun Gong activities and directly after the much publicized 23 January incident. Like the Taiwan issue, the Falun Gong issue challenges China’s overarching concern for the maintenance of sovereignty and stability of the PRC. As such, attempting to limit the activities of the Falun Gong through Article 23 is very much in keeping with Beijing’s longstanding Hong Kong policy: exercising maximum flexibility in practical matters to retain confidence in “one country, two systems” and prosperity in the HKSAR, while keeping completely rigid over the core issue of sovereignty. In asserting its sovereignty and overarching concern for stability, Beijing attempted to limit the activities of the Falun Gong in the HKSAR as these activities are deemed a threat to its sovereignty and security. However, in tackling this issue through Article 23, Beijing is showing its policy of pragmatism: officially distancing the Article 23 issue from the Falun Gong in official media to maintain confidence in Hong Kong’s autonomy and the “one country, two systems” formulation. Finally allowing for the removal of the proscription mechanism following the 1 July demonstration provides evidence for Beijing’s pragmatic approach. 9/11 – A Favorable Global Climate and the Universality of Protecting National Security Newspaper coverage of Article 23 suggests that conditions in the fall 2002 were considered optimal for introducing these laws because of the global post-September 11

88

Ho Hui-chu, “Scholars Say National Security Bill in Conformity with Basic Law,” Ta Kung Pao, 15 June 2003, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2003-0616; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003.

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climate. Extensive reference to the need to protect “national security” in light of the global war on terrorism suggests that the leaders in Beijing are using the current international political environment, which is more amenable to implementing controversial laws in the name of “national security,” in order to act on the Article 23 measures it had long intended for Hong Kong. An editorial dealing with Article 23 titled, “Stability is of Critical Importance to Hong Kong’s Economy,” opens with reference to the terrorist bombings on the Indonesian island of Bali.89 In an article featured in the WWP, Xu Simin, a member of the CPPCC Standing Committee writes, The current international situation is turbulent with terrorists doing damage everywhere and big and hegemonic powers going on a rampage […] In order to build up our own national defense and safeguard our national security, we should never allow the HKSAR to become an unfortified “anti-Chinese” base.90 Coverage in WWP and TKP also stressed the universality of such national security laws. In a special series on legislation of Article 23 titled “All Countries Have Legislation to Punish the Seven Crimes [referring to treason, secession, sedition, subversion, theft of state secrets, activities of foreign political bodies and establishing ties with foreign political bodies],” the Article 23 legislation is compared in detail to existing laws in the US, Germany, Great Britain, Switzerland, France, Spain and Italy.91 At a time when even

89

“Stability is of Critical Importance to Hong Kong’s Economy,” Wen Wei Po, 16 October 2002, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2002-1016; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003. 90 Xu Simin, “Legislation of Article 23 belongs to China’s Sovereignty,” Wen Wei Po, 26 November 2002, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2002-1204; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003. 91 “Special Series on Legislation of Article 23 of the Basic Law: All Countries Have Legislation to Punish the Seven Crimes” Wen Wei Po, 16 September 2002, trans. in World News Connection [database on-line];

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the United States, an ardent advocate of human rights, was willing to sacrifice a degree of individual freedom for national security, the top Chinese officials seem to have seized the opportunity to qualify certain liberties enjoyed by the Hong Kong people in the name of protecting national security. However, Loh points out that protecting national security and preventing terrorist activities are two separate issues that should not have been linked together by the media or government officials.92 In fact, in April 2002, legislation dealing specifically with the UN anti-terrorism measures that resulted from the September 11 attacks was introduced into LegCo and passed in July that year.93 The fact that Hong Kong had already passed laws to protect against terrorist threats as a result of the September 11 attacks while the mainland controlled papers still cited terrorist threats as reasons for the necessity of legislating Article 23 adds further credence to the argument that when dealing with Hong Kong, Beijing takes a pragmatic approach: using the opportune global political conditions during the fall of 2002 to aid the passage of these controversial national security laws that, in reality, had little to do with countering terrorist initiatives. Hong Kong Acting on its Own TKP and WWP coverage also demonstrates an active effort on the part of mainland officials to project the image of Hong Kong being left on its own to enact the Article 23 measures. Several articles and editorials in both the TKP and WWP cite

document no. FBIS-CHI- 2002-0916; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003. 92 Loh, interview. 93 HKSAR government, â&#x20AC;&#x153;Bills Committee on United Nations (Anti-Terrorism Measures) Bill,â&#x20AC;? Legislative Council Bills, 3 July 2002 [government website]; available from http://legco.gov.hk/general/english/bills/ bill0102.htm#0102; Internet; accessed 15 February 2003.

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mainland officials stating that the drafting and implementation of the Article 23 laws have been tasks left to the HKSAR government to deal with. In an article reporting on the statements made by Gao Siren, the director of the Central Liaison Office in Hong Kong, the TKP reporter writes, “When asked if the SAR government will issue a white bill, Gao noted that it is up to the SAR government to decide.” 94 The WWP published an article with a subsection headline “Zou Zhekai: Respect the SAR to Enact laws on Its Own.”95 Zou Zhekai, the deputy director of the Central Liaison Office in Hong Kong, is then reported to have said that “we should respect the SAR because it is prescribed in the Basic Law that the SAR Government should enact the related laws on its own”96 Qian Qichen is also reported in the WWP to have said, In my view, there was not any pressure [on the SAR over enacting Article 23]. Article 23 is the 23rd article of the Basic Law to being implemented at this time; and the people have already approved the Basic Law […] It should be made known that no pressure of any kind was applied and the process has been very open and fair.97 Because of Beijing’s insistence that Hong Kong has been left on its own throughout to enact Article 23, coverage surrounding the national security legislation in 94

Chan Hsiao-yu, “Gao Siren Expresses Hope for Greater Concern About Economic Issues and People’s Livelihood,” Ta Kung Pao, 18 December 2002, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2002-1218 available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003. 95 Zhuan Haiyuan and Liu Weizhong, “Gao Siren Thinks Article 23 Legislation Will Be Relaxed,” Wen Wei Po, 25 September 2002, trans. in World News Connection [database on-line]; document no. FBISCHI-2002-0925 available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003. 96 Ibid. 97 “Qian Qichen: Only Those with Something Devilish to Hide Fear the [Anti-Subversion] Legislation,” Wen Wei Po, 26 October 2002, trans. in World News Connection [database on-line]; document no. FBIS-

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the RMRB was notably less extensive than that of the TKP and WWP and tended to report on events rather than openly express opinions. Perhaps the most striking theme throughout the Article 23 coverage in the RMRB, however, is the effort expended to show that the Hong Kong SAR government was in fact acting on its own to enact the National Security (Legislative Provisions) Bill into the local law. In the majority of articles dealing with any aspect of the national security legislation, some mention was made of the responsibility of the Hong Kong SAR government to enact Article 23 on its own. According to the RMRB, a spokesman for the Security Bureau noted that, The Central People’s Government has left it to the SAR government to decide on how to legislate and Hong Kong is free to formulate its own proposals on BL23, consult the public and present a package to the local legislature.98 Not only was the point made with explicit references to Hong Kong acting on its own but evidence for this could also be found in the RMRB’s style of reporting this issue, which centered not on espousing opinions either for or against the proposed legislation (as was extensively the case in the Hong Kong papers), but rather on reporting the daily occurrences surrounding the enactment of the law without infusing overt value judgments. Official statements issued surrounding the proposed legislation leading up to 1 July 2003 came almost exclusively from Hong Kong government officials with statements from mainland officials remaining noticeably out of the RMRB’s coverage. When opinions were published about the national security laws, they came not from

CHI-2002-1026 available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 15 April 2003.

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mainland legal experts or academics, but from local Hong Kong authorities in the relevant fields. In an article titled “Hong Kong Law Professionals Support Basic Law Implementation,” Elsie Leung, Hong Kong’s secretary for justice was quoted as saying, […] although Article 23 of the Basic Law was promulgated for the purpose of maintaining the state sovereignty, unity and territorial integrity as well as for preserving Hong Kong’s long-term stability and prosperity, the Hong Kong SAR was entrusted with the responsibility to enact laws on its own to give effect to this article in accordance with its legal system.99 In addition to the numerous statements reported in the RMRB by top Hong Kong government officials such as the acting Permanent Secretary for Security Timothy Tong, Secretary for Security Regina Ip, and pronouncements by the Chief Executive himself, the RMRB also frequently cited the utterances of influential local figures in support of Article 23. Tsang Hin-Chi, president of the Chinese General Chamber of Commerce of Hong Kong, was quoted saying Hong Kong must enact the law to safeguard national security as soon as possible,100 while even Li Ka-shing, Hong Kong’s most powerful and successful tycoon was reported by the RMRB as declaring the legislation would not harm Hong Kong’s investment environment.101

98

“Public to Be Consulted on HK Basica Law Article 23: Spokesman,” People’s Daily Online in English, 8 May 2002 [newspaper online]; available from http://english.peopledaily.com.cn/200205/08eng20020508 _95255.shtml; Internet; accessed 8 March 2004. 99 “Hong Kong Law Professionals Support Basic Law Implementation,” People’s Daily Online in English, 8 December 2002 [newspaper online]; available from http://english.peopledaily.com.cn/200212/08/ eng20021208_108107.shtml; Internet; accessed 8 March 2004. 100 “HK Holds Rally to Support National Security Legislation,” People’s Daily Online in English, 23 December 2002 [newspaper online]; available from http://english.peopledaily.com.cn/200212/22/ eng20021222_108932.shtml; Internet; accessed 8 March 2004. 101 Wang Yao, “Hong Kong: New Idea Brings About New Hope,” Renmin Ribao, 22 December 2002, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2002-1231; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 24 February 2004.

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The leaders in Beijing clearly wanted to convey the message that the matter of legislating Article 23 was the sole responsibility of the Hong Kong people and the central authorities were entrusting them to complete this task on its own. The emphasis on portraying Hong Kong as independently enacting the Article 23 legislation can be interpreted as Beijing still portraying Hong Kong as having a high degree of autonomy so as to retain public confidence in the region. The implementation of the Article 23 laws were being presented as legitimately fitting into the framework of China’s “one country, two systems” policy. As Vice Chairman of the NPC Legislative Affairs Committee Qiao Xiaoyang asserts in an article published by the WWP, the reason the HKSAR needs to enact laws on its own to prohibit the acts laid out in Article 23 is because “The Criminal Law of the PRC,” which already bans and punishes these acts, does not apply in Hong Kong by virtue of the separation of the “two systems.”102 Thus, he asserts, Hong Kong officials acting on their own to implement the Article 23 measures provides proof of the success of “one country, two systems.” By trying to show themselves as not dictating policymaking in Hong Kong, the leaders in Beijing want to appear to be abiding by the mandates of the “one country, two systems” policy. This indicates that although China is emphasizing the sovereign necessity of embracing “one country” through Article 23, its top leaders are still taking a pragmatic approach in dealing with matters of concern in the region so as to retain stability and prosperity in the region by taking steps to not jeopardize confidence in the “one country, two systems” formulation. In reality, however, interviewed observers of Hong Kong-China political interactions find it very difficult to believe that this kind of legislation could have been 102

Qiao, “The Basic Law is the Guardian Angel.”

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attempted by Hong Kong acting on its own. Given that Article 23 deals with issues that affect the protection of the “one country,” it would be untenable for Beijing to not have been involved – at least to some degree. The South China Morning Post reported that on 28 October 2002, the secretary for security told legislators that a consensus had been reached with Beijing on both the timing and the general principles of the proposed legislation before it had been finalized.103 The SCMP also reported in November 2002 that Secretary for Justice Elsie Leung told many legislators that Beijing had been consulted before the proposals to implement Article 23 were published for public consultation in Hong Kong. When asked whether these consultations with Beijing may have contravened the principle of “one country, two systems, Allcock, Hong Kong’s Solicitor General, replied, I was aware that there were consultations on the general principle. I think that was justified on the basis that we’re dealing with national security. It obviously concerns the relations between Hong Kong and the central authorities and it would be absurd if we went through the whole processes of enacting this and it was returned under Article 19 as being inconsistent. So I think it is perfectly legitimate. I think it is an example of exactly how it [one country, two systems] should work. I mean the national security law is to protect one country, its to be done in accordance with our system, and it was. The law was drafted along common law principles etc. But given it is to protect national security as a whole – one country – it seems entirely reasonable that there are consultations. Consultations are not the same as being told what to do. 103

Lee, “True Colours.”

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It’s not that we were being directed by Beijing “this is the law we want,” consultations is, “look this is what we’re planning, is it in line with the Basic Law?” So I think it is perfectly alright. Allcock also added prior to 1997, when Hong Kong was still under British rule, communications with London were far more regular and extensive than its currently the case with Beijing: In my experience, because I worked for the government before 1997, every day, telegrams were going off to London from all bureaus and there was a constant receipt of telegrams from London on a daily basis. We don’t do that with Beijing. There is far more autonomy now than before.104 A highly placed source within the Hong Kong government at the time of the legislation of Article 23 confirmed that Beijing had in fact been regularly consulted during the enactment of the bill.105 While the Hong Kong government was forming its proposals, many low profile trips were made to Beijing in to ensure that the legislation was in line with the central government’s wishes. It was however, pointed out that while Beijing was frequently consulted during the legislative process, by in large, the central leadership agreed with the recommendations made by the Tung administration on how to implement Article 23 in accordance with Hong Kong’s common law system. As the source pointed out, there were several terms in Article 23 that did not have any strict definition in common law, such as the term “secession.” As such, it was imperative to consult with Beijing in order to define exactly what specific actions and conditions would trigger these offences.

104 105

Allcock, interview. Anonymous, interview.

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While these trips were not conducted in secret, they were not publicized unless reporters asked directly if they had taken place. The source confirmed that before the administration was able to grant any concessions to the proposed legislation, prior approval from Beijing had to be gained. The eventual withdrawal of the bill also had to be cleared with Beijing before Tung was able to shelve it. The source felt that because the legislation had to do with protecting national security, it was only natural that the central government had to be consulted. However, given the sensitivity of the issue, such consultations had to be done behind the scenes because any kind of outright involvement with the central government would have caused a public outcry that â&#x20AC;&#x153;one country, two systemsâ&#x20AC;? had been contravened. Although the Hong Kong government felt it was perfectly legitimate to have consulted with Beijing in implementing Article 23, the mainland-controlled media in Hong Kong and the RMRB ardently portrayed Hong Kong as enacting Article 23 entirely on its own without any guidance from Beijing. Given the sensitivity of these laws, the central leadership once again took a pragmatic approach in deciding to convey complete detachment from the process of enacting Article 23 rather than publicizing and explaining the necessity of their involvement, thereby risking an uproar within both the Hong Kong and international community. Firmly Opposing Foreign Interference Statements from central government officials regarding Article 23 were reported only in the RMRB with the perception that foreign governments were attempting to interfere in Hong Kongâ&#x20AC;&#x2122;s legislative process. On 26 June 2003 the U.S. House of Representatives passed a resolution urging the Hong Kong SAR government to withdraw

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the legislation related to Article 23. The following day the RMRB reported that in response, Kong Quan, the Chinese Foreign Ministry spokesman said, China firmly opposes the move, for China regards it as intervention in the internal affairs of both China and Hong Kong SAR of China. […] The US House of Representatives has no justification for making irresponsible comments about the enactment of Article 23, and it is useless to do that. China again urges the US side to respect the facts and to refrain from words or feeds which constitute an intervention in China and Hong Kong’s internal affairs and which could harm Sino-US relations and its own image.106 The Hong Kong newspapers were more colorful in their opposition to U.S. interest in the legislation of Article 23. Kuan Chao, in his “Well Water” Column writes, The legislation of Article 23 belongs to the internal matters of the HKSAR government. It is also an internal affair of China. Do Americans have the right to intervene and make irresponsible remarks on the issue concerned? Cox [chairman of the “Policy Committee” of the US House of Representatives], who has been notorious for his anti-China and antiCommunist stance, is creating a pack of lies when he claims that Article 23 legislation will “set back democracy in Hong Kong” and “criminalize freedom of expression.”107

106

“China Firmly Opposes US House of Representatives’ Bill on HK Legislation,” People’s Daily Online in English, 28 June 2003 [newspaper online]; available from http://english.peopledaily.com.cn/200307/06/ eng20030706_119506.shtml; Internet; accessed 8 March 2004. 107 Kuan Chao, “American Politicians Censured for Interfering in Hong Kong Legislation,” Ta Kung Pao, 20 June 2003, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2003-0602; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 4 March 2004.

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The sensitivity of Beijing towards any foreign interference in what it deems to be its internal affairs has its roots in China’s historical experience under Western imperialism. Having been subjected to what it still regards as exploitation and humiliation under the Western powers as mentioned above, any attempt to comment on the governing of Hong Kong is regarded as impinging on China’s national sovereignty and thus remains totally unacceptable to the central leadership. Beijing sees the governing of Hong Kong to be entirely within the realm of internal affairs and thus resolutely denounces any comments made regarding these matters in the official media. However, according to an interview conducted with Jeffery Sexton, political consul in the U.S. Consulate in Hong Kong, the Hong Kong SAR government was in fact very amenable to listening and incorporating suggestions made by the U.S. government with regards to the legislation of Article 23.108 Sexton said that he and the U.S. consul general in Hong Kong, James Keith, met several times with Secretary for Security Regina Ip and Secretary for Justice Elsie Leung. The issue was also raised whenever U.S. government officials (such as U.S. Secretary of State Colin Powell) came to visit. Regardless of the rhetoric denouncing concerns raised by foreign governments seen to be interfering in China’s internal affairs, Sexton felt that the Hong Kong government in general did take their suggestions to heart, as two of the three concessions made after the 1 July protests directly addressed the two major concerns that the U.S. government had with the proposed bill. This outward hostility to foreign commentary despite actual acceptance of suggestions can also be interpreted as a continuation of China’s pragmatic approach in dealing with Hong Kong – not wanting to appear to be allowing foreign governments to

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interfere in it’s internal affairs yet heeding international criticisms so as to not adversely affect international confidence in the region and Hong Kong’s prosperity and stability. 1 July 2003: Beijing’s Silent Shock and Concern The size and scope of the 1 July 2003 protest in Hong Kong was noticeably absent from the RMRB’s coverage of Article 23. Given that the RMRB had, up until 1 July, covered other newsworthy events surrounding Article 23 and the vast international media attention the protest stimulated, not detailing Hong Kong’s largest protest since its reversion to Chinese sovereignty was strikingly conspicuous. In the RMRB, mention of the protest was limited to a sentence in an article titled, “Tung Chee-Hwa: HK Gov’t and Public Share Same Position on Freedoms” which stated, A large number of Hong Kong residents took to the streets Tuesday to express their concerns on the proposed enactment of the National Security (Legislative Provisions) Bill in Hong Kong.109 The censorship surrounding the reporting of protest in mainland press can be interpreted as a sign that Beijing was unnerved by its size and scope. As Davis put it, the leaders in Beijing were “caught with their pants down.” 110 Nobody, including the organizers of the protest, had predicted the enormous turnout on 1 July. Loh commented in the immediate aftermath of the protests that, “there are some very, very red faces among those who advised on the situation and the events clearly caught the national leadership by surprise.”111

108

Jeffery Sexton, interview by author, Hong Kong, 2 February 2004. “Tung Chee-Hwa: HK Gov’t and Public Share Same Position on Freedoms,” People’s Daily Online in English, 2 July 2003 [newspaper online]; available from http://english.peopledaily.com.cn/200307/02/ eng2030702_119261.shtml; Internet; accessed 13 January 2004. 110 Davis, interview. 111 Loh, interview. 109

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A source high up in the Hong Kong government at the time of the legislation of Article 23 indicated that the top leaders in Beijing were highly dissatisfied with the information they had received about the situation in Hong Kong. They were especially disappointed in the mainland officials stationed in Hong Kong, such as those in the Liaison Office, who failed to accurately gauge public sentiment and relay this information it to the central authorities. Almost certainly as a result of this breakdown in communication, on 19 July 2003, Ji Peiding, Hong Kong’s Commissioner of the Ministry of Foreign Affairs was replaced by Yang Wenchang. The leaders in Beijing showed their concern over the situation in Hong Kong by blocking the news of the 1 July and subsequent protests from official mainland press. The leaders in Beijing were concerned not only by the display of public opposition to the proposed legislation and what it suggested about the situation in the region, but also by the consequences this display may have had back on the mainland. Since the “cracking of the iron rice bowl” began with the economic reforms of the 1980s, social pressures on the mainland have been building as a result of unemployment, corruption, and an ever increasing rural-urban/coastal-interior income disparity. As such, any concessions gained by those opposing Article 23 as a result of the mass demonstration could have set a destabilizing precedent for the whole nation if it gained popular attention on the mainland. Another indication of Beijing’s surprise at the public outrage surrounding article can be seen in its effort to improve the channels of communication between Hong Kong and the mainland after the protest. From August to September 2003, high level leaders in Beijing also met with a series of delegations from Hong Kong from different political parties and sectors of society. On 6 September 2003, Vice President Zeng Qinghong met

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a delegation from the Democratic Alliance for the Betterment of Hong Kong. On 24 September 2003, Chinese State Councilor Tang Jiaxuan met with a delegation of the Liberal Party, and on 27 September 2003 Hu Jintao met with a delegation of Hong Kong tycoons in Beijing. From 7-10 September 2003, Ambrose Lau, chairman of the Hong Kong Progressive Alliance (a pro-government party) led a delegation from his party to Beijing to meet with state leaders and concerned officials. According to a personal interview conducted with Lau, Beijing was shocked by the protest of half a million people. I think China is quite shocked by the fact that there is a demonstration by half a million people […] China was concerned to see what really were the problems; so they wanted to meet different groups, political groups, sectors of the community to find out “well, what are your grievances? What is wrong?” because they want to see a prosperous, stable Hong Kong. It seems that something has gone wrong otherwise there wouldn’t be so many people going to the street to demonstrate. I would characterize it [China’s meetings with delegations from Hong Kong] as China’s concern for the well-being and welfare of Hong Kong.112 The series of visits to Beijing from various sectors in Hong Kong’s society clearly signaled Beijing’s attempt to fully assess the situation in the region after having felt a deficiency in accurate information leading up to the protests. Not wanting to lose touch with the situation in Hong Kong again, on 31 December 2003, Beijing formed the Hong Kong Macau Affairs Institute (HKMRI) under the cabinet level Development Research Centre of the State Council. The HKMRI has members who

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have experience working in Hong Kong and who are not mainland officials. According to Loh, it has been openly acknowledged that the 1 July protest was a factor behind its creation and the think tank is there to obtain a comprehensive and accurate picture of Hong Kong. Beijing’s silence immediately following the protests can be interpreted as complete surprise by the central leadership of how volatile the situation really was in Hong Kong and not knowing how best to proceed given their lack of information. Their concerted effort to gain more information in the months following is further evidence for this and their pragmatic approach in dealing with Hong Kong where careful consideration is taken before any decisions are made. Not allowing news coverage surrounding the protests to reach the mainland shows Beijing’s concern over ensuring social stability on the mainland while not issuing an official central government response to the demonstrations illustrates the pragmatism of the central leadership’s approach in appearing to allow the local government to deal with the situation on its own. Beijing’s Support for Tung Prior to 1 July 2003, central authorities rarely issued public pronouncements on concerning the legislation of Article 23. After the 1 July 2003 protests, statements from the central government became more frequent as tension in the region escalated, with questions being raised about the credibility of the chief executive and the HKSAR government in the eyes of the Hong Kong people. On 4 July 2003, Kong Quan quoted Chinese Premier Wen Jiabao as saying the central government would guarantee the legal rights and freedoms of the Hong Kong people. On 6 July 2003, the RMRB reported on the opinions of a central government official in charge of the Commission of Legislative 112

Ambrose Lau, interview by author, Hong Kong, 9 February 2004.

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Affairs of the Standing Committee of the NPC regarding the National Security Bill. The official said he fully agreed with Tung on the legislation of Article 23 and that “the way in which the HKSAR government has been doing is appropriate.”113 Even after Tung announced the deferral of the Bill on 7 July, 30,000-50,000 people still marched to LegCo in protest on 9 July. On 13 July a further 15,000-20,000 protestors staged another protest. The theme of these demonstrations centered on calling for the resignation of the Tung and for a faster pace of democratic reform. In response to this, Beijing began issuing a host of pronouncements by top leaders showing their full support for Tung and the SAR administration. On 19 July, Tung flew to Beijing on a duty visit during which the RMRB reported that President Hu Jintao and Premier Wen Jiabao pledged their firm support for the HKSAR government led by Chief Executive Tung Cheehwa. On 21 July, the RMRB published an article titled, “Hu, Wen Pledge Firm Support for HK Chief Executive,” in which President Hu expressed full confidence in the HKSAR government headed by Tung and the people of Hong Kong.114 President Hu is quoted as saying, Tung has made the great contributions [sic] to successfully implementing the ‘one country, two systems’ policy and in maintaining prosperity and stability in Hong Kong. The Central Government firmly supports the HKSAR government to govern the region according to law.115

113

“NPC Official on Hong Kong’s Draft National Security Bill,” People’s Daily Online in English, 6 July 2003 [newspaper online]; available from http://english.peopledaily.com.cn/200307/06/eng20030706_ 119506.shtml; Internet; accessed 8 March 2004. 114 “Hu, Wen Pledge Firm Support for HK Chief Executive,” People’s Daily Online in English, 21 July 2003 [newspaper online]; available from http://english.peopledaily.com.cn/200307/20/eng20030720_ 120621.shtml; Internet; accessed 11 April 2004. 115 Ibid.

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The WWP and TKP also rallied behind the Tung and his administration in the immediate aftermath of the protests. On 8 July, Gao Siren, director of the Liaison Office of the Central People’s Government in Hong Kong was reported in the WWP to have stressed that the Central Liaison Office respects and supports the decision made by Tung and the SAR government on deferring the second and third readings of the National Security Bill and that such a move will not affect the government’s authority in effective governance.116 On 18 July 2003, the WWP published an editorial citing Tung’s courage and commitment in retaining his post: True to the expression “just as sturdy grass reveals its quality in a strong wind, a man proves this loyalty in times of turbulence”, Chief Executive Tung should be commended and supported for opting to go through the current trying times with (the people) of Hong Kong at this difficult juncture.”117 Another WWP editorial published on 20 July 2003 asserted that Tung’s high-level meetings with the central leaders and the “important” speeches delivered by them clearly indicated to the people of Hong Kong that the central government fully supports Tung and his administration.118 Not only did media coverage ardently voice the central government’s continued support for Tung and his administration, the TKP, WWP and RMRB frequently called on 116

Huang Chin-Chieh, Chen Hui-shien and Mai Huai, “Gao Siren Calls on HK to Accelerate the Pace of Revitalizing Economy,” Wen Wei Po, 8 July 2003, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2003-0708; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 12 March 2003. 117 “Remaining Dedicated to Post in Face of Challenge,” Wen Wei Po, 19 July 2003, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2003-0718; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 12 March 2004.

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the Hong Kong people also to support Tung and his administration, claiming that as long as the HKSAR government learned from its mistakes, it is still fit to govern Hong Kong. Thus while there was an admission that the HKSAR government should “earnestly review and improve its administration,” the emphasis of the reporting centered on not dwelling on political issues but moving on quickly to try to solve the current economic problems.119 From interviews conducted, however, it appears the central government has in fact lost confidence in Tung and his administration despite its pronouncements to the contrary. Since the protests in July, the central government has taken a much more active interest in Hong Kong affairs even placing Vice Premier Zeng Qinghong directly in charge of overseeing the situation in Hong Kong, thus bringing greater high-level attention to the region. According to the observations of a former government official, Beijing’s more visible interest in Hong Kong’s affairs signals two things. Firstly, the central leadership has lost its confidence in Tung’s ability to govern effectively and thus has taken it upon itself to play a more active role. Secondly, the central leadership feels that Tung has lost his legitimacy to govern in the eyes of the Hong Kong people and therefore it must step in to assume that role. However, Beijing does not want to give the impression that it does not support Tung because he was handpicked by Jiang Zemin and having him prove to be a failure undermines the authority of the central government and the success of “one country, two

118

Editorial, “The Central Government Resolutely Maintains Stability in Hong Kong,” Wen Wei Po, 20 July 2003, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2003-0721; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 7 April 2004. 119 Guan Zhao, “Well Water Column: ‘Bringing Down Cabinet’ and Restoring Rule Cannot be Tolerated,” Ta Kung Pao, 9 July 2003, trans. in World News Connection [database on-line]; document no. FBIS-CHI2003-0711; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 4 April 2004.

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systems.” Because of Beijing’s concerns with its international image and its desire to be regarded as a responsible global actor, it recognizes that HKSAR affairs must be handled in a prudent manner. Thus, the leaders in Beijing have once again taken a pragmatic approach by officially pledging complete support for Tung and confidence in his ability to govern while quietly taking a more active role in overseeing the situation in Hong Kong. Placing the situation in Hong Kong higher up in its list of priorities however, reflects the central leadership’s overall concern for stability and sovereignty in dealing with Hong Kong. “The Real Story”: Beijing’s Political Deflection Beijing responded to the 1 July protests by first censoring the details surrounding the event in the mainland accessible media reports, then by downplaying the intentions of the protesters and the significance of the demonstrations. For example, the RMRB reported that protests were commonplace in Hong Kong: To say something that is not too pleasant to the ear, it is probably quite an easy matter to demonstrate in the street in Hong Kong today. No matter whether the reason is big or small, if you are discontented you can parade around brandishing banners and shouting slogans. No matter whether it is right or wrong or who is to blame, everything “lands” on the government. […] From several tens of thousands to just a few people, it seems that demonstrations have never ceased in Hong Kong during the past few years (except during the SARs epidemic). No wonder many citizens say

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disapprovingly that Hong Kong has simply become “the city of protest,” which damages its international image.120 While this article acknowledges the 1 July protest, by referring to Hong Kong as “the city of protest” and using the range “from several tens of thousands to just a few people,” the RMRB downplays the enormity of the 1 July protest symbolically and literally as the unprecedented 1 July protest has now been commonly accepted to have attracted upwards of half a million participants. The RMRB also reported frequently that the Hong Kong population at large supported the national security legislation and that the majority of the protestors were not opposed to Article 23. According to a commentary published in the RMRB, Those who took part in the mass protest asked for a variety of things and only a minority of them really opposed Article 23 legislation. According to the figures released by a newspaper, this minority numbered only about 240,000. Many of them were just not satisfied with the way the bill was presented to them and hoped for a longer period of consultation; but they were not opposed to the basic principle that laws must be enacted to safeguard national security.121 The WWP published a survey on 2 July claiming that the people, “demonstrated in the name of “opposition to Article 23 and government returned to the people,” but many of them did not seem to have any idea of what they were protesting about:

120

Wu Ming “A Few Phrases of Digression on the ‘Freedom to Demonstrate’ in Hong Kong,” Renmin Ribao, 3 July 2003, trans. in World News Connection [database on-line]; document no. FBIS-CHI-20030703; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 24 February 2004. 121 “Miscalculation of Public Opinion: Commentary,” People’s Daily Online in English, 10 July 2003 [newspaper online]; available from http://english.peopledaily.com.cn/200307/10/eng20030710_ 119890.shtml; Internet; accessed 11 April 2004.

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Among those who claimed they were against the legislation on Article 23 of the Basic Law, it was not difficult to find that they did not have any idea of the work done by the government in fine-tuning the legislation, least of all any “rationale” given for the opposition.122 Commentaries and opinions published in the RMRB claimed that a vast number of people who were discontent over the current economic situation were misled into protesting by a group of legislators who capitalized on the current situation to further their own political agendas. The gang of so-called “democrats” in Hong Kong have for many years consistently engaged in distorting the truth, provoking contradictions in society, inciting discontented “professionals,” and misguiding the Hong Kong people and international opinion. Before 1997 they devoted efforts to doing everything possible to block reversion; since reversion, they have racked their brains in opposing the “Basic Law” and interfering with the government in ruling Hong Kong according to law.123 Those organizing the demonstration were also widely accused by the mainland-controlled press of having ulterior motives in their opposition to Article 23. The “so-called democrats,” as they are referred to in these publications, are accused of irrationally opposing everything the government proposes because they want to topple the HKSAR government and “seize power amid chaos.” They are also accused of fundamentally wanting “one country, two systems” to fail and using the Article 23 legislation to incite

122

“Some Sectors of the Mass Media Are Not Sparing Any Effort in Their Opposition to the Legislation on Article 23,” Wen Wei Po 2 July 2003 trans. in WNC 12 March 2004 document FBIS-CHI-2003-0702. 123 Ming “A Few Phrases of Digression.”

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turmoil to further this end. On 10 July 2003, Tsang Hin-Chi is quoted in the TKP as saying, The slogan of the Democratic Party, “opposition to Article 23; government returned to the people,” has completely exposed their political goal of objecting to the legislation in Article 23. It is not for the defense of the rights and freedoms of the people, but for turning Hong Kong into an independent, or quasi-independent entity, a political base to overthrow the Chinese government and overturn “one country, two systems.”124 Kuan Chao of the TKP, in his “Well Water” Column writes, After 350,000 people took to the streets to take part in the 1 July demonstration, the arrogance of the “democratic camp” of resisting China and creating confusion in Hong Kong cannot be more arrogant than it is now. […] Their “appetite is so lusty” that what they want now is not just to “topple Tung” but also to “completely bring down” the governing body of the “Tung administration” and to restart again.”125 Rather than acknowledging the concerns of those opposed to the Article 23 legislation, the TKP, WWP and RMRB characterized them as having ulterior motives and attempting to destabilize the country in order to discredit the pro-democracy camp’s legitimacy to represent public opinion.

124

He Hui-chu and Dai Ching-cheng, “NPC Standing Committee Member Tsang Hin-chi says Hong Kong’s most pressing need now is stability. All sectors should stop bickering and work together towards Hong Kong’s economic well-being,” Ta Kung Pao, 10 July 2003, trans. in World News Connection [database on-line]; document no. FBIS-CHI-0710; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 4 April 2004. 125 Zhao, “Well Water Column: Bringing Down Cabinet.”

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Some comment in the mainland-controlled press even went so far as to compare the 1 July demonstrations with the turmoil that resulted from the Cultural Revolution. An editorial published by the WWP claimed that “some politicians in Hong Kong have followed the practices during the Cultural Revolution by politicizing everything, and attempting to bring down the government.”126 On 7 August 2003, the TKP published a speech by Zhou Zhekai, deputy director of the Central Liaison Office in Hong Kong, to the business community’s preparatory committee for National Day celebration that likened the 1 July marches to the Cultural Revolution. 127 These comments raised an uproar within the Hong Kong community as one of the distinct elements of the 1 July march was that it drew half a million people yet remained extraordinarily peaceful with no arrests and participants even cleaning up after themselves at the end of the march. Sexton remarked that this was a strongly derided statement within Hong Kong, even among the most loyal of pro-Beijing groups. Even the largest pro-Beijing party in the territory, the Democratic Alliance for the Betterment of Hong Kong, tried to distance itself from this statement.128 Loh points out that the 1 July protests were very peaceful in nature even though the message the protestors were trying to get across was very somber: people were cheering and all the shops remained open; there was no aggression as there was during the Cultural Revolution. It was “a display of concern by a very mature

126

Editorial, “Politicians Fish for Gains; Hong Kong People Pay the Price,” Wen Wei Po, 4 July 2003, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2003-0704; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 12 March 2003. 127 Zhou Zhekai, “‘Hong Kong People Should Conscientiously Maintain Social Stability,’ speech at the Estabilishment of the Preparatory Committee of National Day Celebration by HK Industrial and Commerical Circles,” Ta Kung Pao, 7 August 2003, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2003-0807; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 5 April 2004. 128 Sexton, interview.

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society.”129 Davis contends that such statements were a part of the pro-Beijing figure’s scare tactics: attempting to color this benchmark event in a more sinister light in order to discourage Hong Kong people from agitating for further demands, such as constitutional reform to allow for greater democracy and to prevent reoccurrences of such activities on the mainland.130 Mainland-controlled coverage after the protests also tended to shift the focus of what the protesters wanted away from political issues towards economic discontents. According to Wu Ming of the RMRB, the primary concern of the people of Hong Kong “was, is and will be none other than how to make money, how to raise their standard of living, and how to increase Hong Kong’s competitiveness.”131 As a commentary in the RMRB says, Since returning to the motherland, the SAR has experience numerous problems – economic trauma, negative equities, a severe fiscal deficit, and high unemployment, which have been aggravated by the government’s mishandling of the issues due to inexperience. All these have generated a lot of grievances among the people. That is the main impetus for half a million people joining the protest on 1 July. Nevertheless, Hong Kong people are sensible enough not to attribute all the blame to the chief executive and the government, nor will they confound economic problems with Article 23 legislation. After

129

Loh, interview. Davis, interview. 131 Wu Ming, “Hong Kong’s Mainstream Public Opinion is Undoubtedly Economic Development. The Primary Concern of the People of Hong Kong Was, Is and Will Be None Other Than Making Money, Raising Standard and Increasing Hong Kong’s Competitive Edge,” Renmin Ribao, 10 July 2003, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2003-0710; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 11 April 2004. 130

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venting their pent-up feelings, they will come to realize the most pressing task at the moment are post-SARS reconstruction and economic revival, and that social and political stability is the essential pre-requisite.132 After 1 July, the WWP and TKP filled their pages with articles shifting the focus of the debate away from political issues towards economic solutions. As a WWP editorial wrote, The most extensive public pleas of the “1 July demonstration” originates [sic] from the continuing economic recession for several years. The many slogans and posters on various aspects of economic livelihood seen at the demonstration clearly convey this message. […] The incessant political row in recent years makes Hong Kong unable to concentrate on developing its economy. All Hong Kong people are victims. Eliminating political rows and working together to revive the economy with one heart are precisely the blessings of the Hong Kong people.133 Portraying the focus of the protest as an expression of discontent due to the economic hardships suffered by the people of Hong Kong rather than the proposed national security legislation itself follows along with Beijing’s pragmatic approach in attempting classify the problem as economic rather than political. This attempt can be interpreted as a move to avert a political crisis locally and maintain stability both in Hong Kong and on the mainland.

132

“Miscalculation of Public Opinion: Commentary.” Editorial, “Hong Kong People Should Listen to Advice of Foreign Chambers of Commerce,” 9 July 2003, trans. in World News Connection [database on-line]; document no. FBIS-CHI-2003-0709; available from DIALOG Information Services, Inc., Palo Alto, Calif.; accessed 12 March 2004.

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For the leaders in Beijing, providing solutions to an economic problem are much less sensitive than tackling political issues. While China has been liberalizing its economy rapidly since the 1980s, political liberalization and reform have moved along at a much slower pace. Central government leaders fear that calls for political reform in Hong Kong may resonate throughout the rest of China, where similar aspirations have been kindling since the economic reforms of the 1980s. As such, Beijing has been trying to diminish the political salience of the 1 July protests by throwing economic stimulus at the problem. On the eve of the 1 July protests, Premier Wen Jiabao met with Tung in Hong Kong to sign the Closer Economic Partnership Arrangement (CEPA) on behalf of President Hu Jintao.134 CEPA provides more favorable opportunities and conditions for trade between Hong Kong and the mainland including zero tariffs on goods imported from Hong Kong. Since the 1 July protest, mainland and Hong Kong officials have been working to fast track the implementation of this arrangement. The central authorities have also instituted further preferential policies for Hong Kong in order to improve the economic situation such as allowing mainland tourists to visit the region without having to be a part of an organized tour for the first time. Turning the problem into one of economics allows Beijing to show its concern for Hong Kong and display its willingness to help improve the situation. However, not acknowledging the calls for political change indicates the immovable grip the central leadership has on its sovereign control over Hong Kong. While the mainland officials recognize the importance of remaining pragmatic in dealing with Hong Kong because of

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its international reputation and the reputation of “one country, two systems,” they will not allow Hong Kong to jeopardize the stability of the nation. As such, in portraying the problems as economic, the central leaders have once again reasserted that they are concerned with the well-being of the Hong Kong people so long as their demands do not jeopardize the sovereign control of the CCP and the stability of the nation.

134

“Chinese Premier Meets Hong Kong Chief Executive,” People’s Daily Online, June 30 2003, [newspaper online]; available from http://english.peopledaily.com.cn/200306/30/eng20030630119107.shtml; Internet; accessed 13 January 2004.

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Chapter V Conclusion Contrary to international media hype over the Article 23 controversy, an analysis of the RMRB and two PRC-owned Hong Kong newspapers indicates that the basis of China’s Hong Kong policy has not changed fundamentally. Using the flexibility of its Hong Kong policy to stress the “one country” aspect of the “one country, two systems” formulation for the purpose of implementing Article 23 is very much in keeping with the PRC’s continually pragmatic approach in dealing with Hong Kong. China’s Hong Kong policy still centers on pragmatism and endeavors to retain sovereignty above all else. China’s Hong Kong policy was initially designed to be flexible so as to allow China to increase or decrease the degree of autonomy it granted to the region in accordance with changing circumstances. However, in China’s Hong Kong policy, China’s own interest and the preservation of sovereignty has always taken precedence above all else. Article 23 is very much in line with the core purpose of China’s policy towards Hong Kong because it legislates to outlaw any activity that could threaten this core tenet of sovereignty. China had always planned to have laws to protect against sovereignty-threatening activities in Hong Kong. The implementation of Article 23 was as much a symbolic gesture for the central leadership as it was a practical necessity. In following their pragmatic approach, the central leaders allowed a delay in the implementation of Article 23 as the first term of the Tung administration was deemed too early to act upon these controversial national security laws. When Falun Gong activities in January 2001 gained international media attention, it appears the central leadership started feeling that the time

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had come to begin legislating Article 23. The amenable international environment to enacting controversial laws for the sake of national security in light of the September 11 terrorist attacks later that year provided further impetus to move forward. Coupled with a domestic concern for getting the legislation comfortably out of the way before the upcoming LegCo elections and with China’s increasing intolerance of the Hong Kong media reporting sympathetically on Taiwan’s independence since the election of Chen Shui-bian, moves to begin enacting Article 23 did not indicate China’s Hong Kong policy had shifted – rather, they were merely an indication that Beijing felt the conditions to implement these laws were finally ripe. Unfortunately for the Tung administration, this assessment could not have been more wrong. Having suffered through five years of economic downturns and just come out of the SARs epidemic, which brought Hong Kong’s economy to a standstill, the people of Hong Kong were in no mood to allow a set of controversial laws to be enacted without their support. In what arguably will be regarded the most botched public relations campaign in the history of Hong Kong, the Tung administration was unable to complete a theoretically easy task given the pro-government arrangements of Hong Kong’s lawmaking system. The administration took the position that it would be able to pass the law regardless of the people’s objections simply because it had the necessary votes in the legislature. Had the administration simply approached the enactment in a more responsive and open manner – genuinely taking opposing views into consideration by performing a more fair and transparent consultation – the legislation, although still controversial, would probably have passed with relative ease.

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Examining the official rhetoric throughout legislative process reveals that pragmatism still reigns in the PRCâ&#x20AC;&#x2122;s Hong Kong policy. By showing Hong Kong as acting on its own in the legislation of Article 23, Beijing demonstrated that to retain confidence in the â&#x20AC;&#x153;one country, two systemsâ&#x20AC;? formulation, it was prepared to feign detachment even though the enactment of a law to protect national security arguably necessitated some degree of involvement of the sovereign. By not immediately issuing statements either condemning or condoning the 1 July demonstrations, Beijing revealed that in continuing along its long term Hong Kong policy of taking piecemeal steps to adapt to changing circumstances, properly assessing the changing situation factors largely into tailoring its approach and responses. Allowing Tung to introduce sweeping concessions and in the end, allowing for the withdrawal of the Bill, once again points to the pragmatism and flexibility of the central leaders in dealing with practical matters. However, in restricting the Article 23 controversy to the economic and not political realm, Beijing further demonstrates its rigidity over the core issue of sovereignty and its overarching concern with its protection. The CCP leaders never wanted to allow elements who held views contrary to the official line to use Hong Kong as a soap box from which to voice their opinions and causes. As the opportunity to clamp down on such activity presented itself in the form of an international environment more amenable to the protection of national security, China, in keeping with its traditional approach of pragmatism and adapting its policy to changing circumstances, seized the opportunity to protect its interests and sovereignty once more. However, when the implementation of Article 23 proved to be more difficult than expected and threatened to destabilize the entire region, Beijing again let

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pragmatism to reign in allowing for the Bill to be shelved. By not heeding the calls for political reform, however, reveals Beijing preoccupation with sovereign control supercedes any concern for flexibly in practical matters.

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Postscript This thesis has analyzed what the enactment of Article 23 tells us about Beijing’s Hong Kong policy through a content analysis of official rhetoric found in three Chinese government-controlled newspapers from February 2001 to December 2003. It argues that in moving to legislate Article 23, Beijing’s fundamental policy towards Hong Kong of exercising maximum flexibility in practical matters while holding rigidly to sovereignty has not changed. Developments after December 2003, which unfortunately go beyond the scope of this paper, have continued to provide further indications of Beijing’s policy for dealing with Hong Kong. Following the withdrawal of the National Security (Legislative Provisions) Bill, those who had spoken out against the Bill’s enactment began calling for changes to Hong Kong’s political system in order to make the government more accountable to the people. Article 45 of the Basic Law allows for the possibility of greater democratization from 2007. According to democratic and independent legislators, the Article 23 fiasco highlighted serious flaws in the governing of Hong Kong. As such, it felt the time had come to begin discussions on implementing universal suffrage for the election of the chief executive and the legislature. In response to these calls, Beijing officials met with a three-member delegation from Hong Kong headed Hong Kong’s new financial secretary, Donald Tsang in February 2004 to exchange views on Hong Kong’s constitutional developments. Following these meetings, Beijing republished Deng Xiaoping’s remarks on “one country, two systems” emphasizing that Hong Kong must be governed by local people “with patriots as the main body.” On 6 April 2004, the Standing Committee of the NPC issued

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an interpretation of Article 7 of Annex I and Article 3 of Annex II of the Basic Law, stating that the NPC had the right to determine whether there was “a need” to introduce democratic changes. If the NPC determines there is a need, then the CE should draft and introduce such changes on the condition of approval by the NPC. On 26 April, the Standing Committee of the NPC directly ruled out the possibility of universal suffrage of the chief executive in 2007 and LegCo in 2008. An interesting question for further research would be to analyze what these new developments indicate about Beijing’s longstanding Hong Kong policy. Conversations with various people in Hong Kong while these events were taking place indicate that, as a result of the Hong Kong government’s inability to enact the Article 23 legislation, Beijing has begun to take a more pro-active role in the governing of Hong Kong. From only a preliminary assessment of the situation, I would conjecture that since 1 July, Beijing as begun to feel its sovereignty threatened in the HKSAR and thus has once again used the flexibility its Hong Kong policy to adapt to changing domestic circumstances. Prior to the legislation of Article 23, Beijing had been happy to leave Tung in charge of governing Hong Kong in order to retain confidence in the region and in the “one country, two systems” formulation. As I have argued, this was a part of Beijing’s strategy of pragmatism and flexibility. However, since 1 July, Beijing has lost confidence in Tung’s ability to govern. Beijing, in the months following the 1 July protest, appears to have decided that its policy of allowing greater autonomy has not proved effective. Thus it has one again used the flexibility of “one country, two systems” to exert greater direct control as it has begun to feel challenges to its sovereignty through increased agitations for universal suffrage. The situation in Hong Kong has changed as the people have begun

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to make greater demands for self-government that Beijing is not prepared to concede. As such, since February 2004, through the NPC interpretation of the Basic Law, Beijing has begun to take a more visible stance: directly reasserting its unwillingness to have its sovereignty questioned. In the end, I would still argue that in dealing with Hong Kong, Beijingâ&#x20AC;&#x2122;s paramount concern over sovereignty still reigns.

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Appendices Appendix I The main provisions of the National Security (Legislative Provisions) Bill as announced on 13 February 2003135 Treason The treason offence is limited to: *joining foreign armed forces at war with our country with the intent to overthrow or intimidate the Central People's Government, or to compel the Central People's Government to change its policies or measures; *instigating foreign armed forces to invade our country with force; or *assisting a public enemy at war with our country with an intent to prejudice the position of the country in the war. The offence of treason will not apply to non-Chinese nationals. For clarity, various concepts involved are clearly defined. For example, a "state of war" is defined to mean "only open armed conflict between armed forces or publicly declared war". General demonstrations or riots are not considered war. To address people's concern, the common law offence of misprision of treason will be abolished, and no new statutory offence will be created.

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Secession The offence of secession is defined as withdrawing any part of the People's Republic of China from its sovereignty by using force or serious criminal means that seriously endangers the territorial integrity of the People's Republic of China or by engaging in war. The reference to "resisting the exercise of sovereignty" will be deleted in the secession offence. Subversion An offence of subversion means to: *disestablish the basic system of the People's Republic of China as established by the Constitution; *overthrow the Central People's Government; or *intimidate the Central People's Government by using force or serious criminal means that seriously endangers the stability of the People's Republic of China or by engaging in war. The reference to "threat of force" will be deleted in both the secession and subversion offences and, apart from engaging in war, only the actual use of force or serious criminal acts similar to terrorist activities will be covered. Sedition

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HKSAR government, â&#x20AC;&#x153;Government announces Bill to implement Article 23â&#x20AC;? Proposals to implement Article 23 of the Basic Law, 13 February 2003 [government website]; available from http://www.info.gov.hk/gia/ general/ 200302/ 13/0213140.htm; Internet; accessed 30 April 2004.

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An offence of sedition means to: *incite others to commit the offence of treason, subversion or secession; or *incite others to engage in violent public disorder that would seriously endanger the stability of the People's Republic of China. In relation to the offence of dealing with seditious publications, the prosecution will have to prove beyond reasonable doubt the intention of the person concerned to incite others to commit the offence of treason, subversion or secession. The offence of possession of seditious publications, which already exists in our statutes, will be abolished. The freedoms of speech, of publication and of academic research are fully protected. Theft of state secrets Only two slight amendments will be made to the existing "Official Secrets Ordinance". Regarding the protection of information relating to "relations between the Central Authorities and the HKSAR", protection will be limited to information on matters concerning the HKSAR that are within the responsibility of the Central Authorities under the Basic Law. In addition, disclosure of such information will only be penalized when it endangers, or is likely to endanger, "national security". "National security" is defined as "the safeguarding of territorial integrity and the independence of the People's Republic of China". The free flow of financial information will not be impeded. The second amendment is to plug a loophole relating to the damaging disclosure of protected information which has been obtained through illegal access. 91


"Illegal access" will be limited to criminal acts under Hong Kong law of unauthorised access to computer by telecommunication, access to computer with criminal or dishonest intent, theft, robbery, burglary or bribery. Foreign political organisations Existing provisions of the Societies Ordinance will be used to prohibit foreign political organisations or bodies from conducting political activities in the HKSAR and political organisations or bodies of the HKSAR from establishing ties with foreign political organisations or bodies. No amendments to the provisions are proposed. Proscription of organisations endangering national security The Societies Ordinance already empowers the Secretary for Security to proscribe a society that endangers national security. This power can only be exercised where it is necessary and proportionate under the standards of the International Covenant of Civil and Political Rights (ICCPR) to do so in order to protect national security. The Bill sets out a similar power in respect of any type of organisation, but this new power can only be exercised under one of the following circumstances: *the objective, or one of the objectives, of the organisation is to engage in acts of treason, secession, sedition, subversion, or spying; *the organisation has committed or is attempting to commit acts of treason, secession, sedition, subversion, or spying; or

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*the organisation is subordinate to a Mainland organisation which has been proscribed in the Mainland by the Central Authorities by means of an open decree and in accordance with the national law on the ground of protecting the security of the People's Republic of China. A local organisation will be considered as subordinate to a Mainland organisation only if the former accepts substantial financial contributions from, is directed or controlled by, or has its policies determined by, a Mainland organisation. A local organisation will not automatically be proscribed even if it is subordinate to a banned Mainland organisation. As mentioned earlier, the Secretary's power to proscribe organisations endangering national security will have to be exercised in strict accordance with the standards under the ICCPR. Any person aggrieved by the Secretary for Security's decision to proscribe an organisation will be able to appeal to the Court of First Instance, both on points of fact and points of law. The proposal to establish a special appeal tribunal will be dropped. The decision to proscribe an organisation in itself does not create a criminal offence. Only when individuals continue to support the operation of the organisation despite the proscription order will they commit a criminal offence. Emergency investigation powers It will be stipulated that only police officers at the rank of Chief Superintendent of Police or above could authorise the exercise of emergency investigation powers by police officers. The emergency powers can only be exercised if the police officer reasonably

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believes that the relevant offence has been or is being committed, and that unless immediate action is taken, evidence of substantial value to the investigation of the offence would be lost, and that the investigation would be seriously prejudiced as a result. It will also be stipulated that the search or seizure of journalistic materials must under all circumstances be authorised by court warrants. The freedom of press will not be affected. And as we pledged earlier, we will not seek to expand the Police's financial investigation powers. Trial by jury It will be stipulated that any person charged with treason, secession, subversion or the first limb of sedition must be tried by jury. Those charged with the second limb of sedition or unlawful disclosure may opt for trial by jury if they so wish. Compliance with Article 39 of the Basic Law The Bill also specifically provides that the interpretation, application and enforcement of the provisions implementing Article 23 shall be consistent with Article 39 of the Basic Law, which guarantees that the international human rights standards as applied to Hong Kong shall be implemented.

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Appendix II Press Release Government announces draft amendments to the National Security (Legislative Provisions) Bill136 ***************************************************** The Government today (June 3) announced a series of draft amendments to the National Security (Legislative Provisions) Bill, after careful consideration of the views of the Bills Committee and concerned parties. The National Security (Legislative Provisions) Bill, which implements Article 23 of the Basic Law, was introduced into the Legislative Council in February 2003 after a thorough three-month public consultation period. "We believe the Bill and the amendments have struck a balance between the need to protect national security and the need to safeguard human rights," a Government spokesman said. "We hope that the Bills Committee would scrutinize the proposed amendments and support the enactment of the legislation within this legislative year," he added. Following are the main amendments 1. Extending guarantees of rights and freedoms

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HKSAR government, â&#x20AC;&#x153;Government announces draft amendments to the National Security (Legislative Provisions) Billâ&#x20AC;? Proposals to implement Article 23 of the Basic Law, 3 June 2003 [government website]; available from http://www.info.gov.hk/gia/general/200306/03/0603272.htm; Internet; accessed 30 April 2004.

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The Bill provides in three places that the interpretation, application and enforcement of the relevant provisions must be consistent with Article 39 of the Basic Law which enshrines international human rights standards. For further assurance, we propose to extend these safeguards to refer to Chapter III of the Basic Law. The Chapter provides for various constitutional guarantees on rights and freedoms. We also propose to extend the coverage of the safeguards to the entire Official Secrets Ordinance. 2. Further tightening of sedition offences In response to some concerns expressed, we propose to introduce the element of "likelihood" into the sedition offence. As a result, a person could only commit the sedition offence if he intentionally incites others to commit the specified crimes endangering the state, and when the crimes incited are likely to occur. 3. Removal of overlap between proscription mechanisms To address the overlap of proscription powers on grounds of national security under the existing section 8 and the proposed section 8A of the Societies Ordinance, we propose to delete the reference to "national security" from the existing section 8, such that all proscriptions on national security grounds would be taken under the proposed section 8A. This would ensure that organizations proscribed on such grounds would benefit from the additional safeguard of an appeal avenue to the court as proposed in the Bill. 4. Special procedures for appeals against proscription To address the concerns that it may not be the best arrangement for the Chief Justice to make rules for the special procedures, it is proposed that the Secretary for Security should

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be empowered to make regulations governing the special appeal arrangements. These regulations would be subject to vetting by the Legislative Council before coming into effect. 5. Three-year prosecution time limit for seditious publications A time limit of three years is proposed for the prosecution of the offence of handling seditious publications, after taking into account practical requirements in investigating the crimes. 6. Authorization of emergency powers limited to the Assistant Commissioner level or above. The proposed emergency investigation powers are already tightly defined in the Bill. To further allay concerns, we propose that the rank of police officers that can authorize such powers to be further raised to the Assistant Commissioner level or above.

End/Tuesday, 3 June 2003

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Microsoft Word - THESIS FINAL  

Chapter I Introduction ........................................................................................................................