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Article 23 - HK's biggest crisis since the 1997 handover

Nora Tong

The Article 23 legislation has provoked Hong Kong's biggest political crisis since the 1997 handover. It has also stirred up more public anger and protest than any issue in the territory since the 1989 Tiananmen Square massacre in Beijing.

'There is no doubt that the anti-subversion law is the most sensitive issue the SAR has had to deal with since the change of sovereignty,' observed Frontier leader Emily Lau Wai-hing.

The former leader of the Democratic Party, Martin Lee Chu-ming, noted that opposition to the proposed legislation came from many different groups.

'This is the first time since the handover when there has been so much worry expressed over our freedoms both at home and abroad,' Mr Lee said.

'In Hong Kong, those who have spoken out in public include politicians, church leaders, the Bar, the Law Society, academics, librarians, teachers, journalists, trade unionists, bankers, foreign chambers of commerce, university students - as well as many ordinary citizens.''

This opposition culminated in a massive protest in Hong Kong on July 1 - with 500,000 people participating. Hong Kong people had been following the issue closely. Nearly two-thirds of people had opposed the Government's July 9 deadline for the passage of the national security bill into law, a University of Hong Kong study had found on June 28.

The July protest shocked Hong Kong's Government - even Chief Executive Tung Chee-hwa admitted the demonstration had left him sleepless that evening.

In response to the growing political impasse, Mr Tung announced three concessions to help defuse the crisis. These included scrapping the proposals in Article 23 to outlaw groups linked to banned mainland organisations; the removal of searches by police without warrant powers; and 'public interest'' was introduced as a possible defence for disclosing official secrets.

But Mr Tung emphasised that Hong Kong still needed to pass Article 23. 'I have repeatedly stressed that it is the duty of the Hong Kong Special Administrative Region and the citizens of Hong Kong to implement Article 23 of the Basic Law and to safeguard our national security,' he said.

He argued that people would cease to fear the measures once they better understood the details.

But the Chief Executive had failed to allay public concerns; more dramatic developments were to follow.

On July 6, Executive Council member and Liberal Party chairman James Tien Pei-chun resigned from the Cabinet. His unexpected departure helped force the Government to postpone passage of the Article 23 bill.

On July 16, the Chief Executive announced the resignation of Secretary for Security Regina Ip Lau Suk-yee - the minister responsible for promoting Article 23.

The following day, Mr Tung announced there would be further consultation on the bill across Hong Kong. Legal experts and human rights groups had been calling for greater consultation for months.

The origins of the controversy began in 1990 when Hong Kong adopted the Basic Law - the territory's mini-constitution.

Article 23 of the Basic Law argued that Hong Kong should have a national security law. It said: 'The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition or subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organisations or bodies from conducting political activities in the region, and to prohibit political organisations or bodies of the region from establishing ties with foreign political organisations or bodies.'

Article 23 aims to safeguard China and Hong Kong from treason, secession, subversion, sedition and theft of state secrets. But since the Article 23 consultation period began in September 2002, many lawyers, journalists, human rights activists and academics have challenged the Government over Article 23. Among other things, they have argued that the legislation is unnecessary, too harsh, easily open to abuse by Beijing - and could ultimately deprive Hong Kong people of their freedoms. Many groups, objected to the use of terms such as 'sedition'', 'secession'' and 'treason'' in the proposed legislation. They argued that such terms were inappropriate and only relevant in extreme situations - such as wartime.

Human rights groups and Falun Gong practitioners, for example, feared Article 23 could be used to suppress groups in Hong Kong which are disapproved of by the Chinese Government.

Hong Kong Human Rights Monitor director Law Yuk-kai said the proposed laws were so vague they could be easily abused.

'It is in effect, allowing Chinese communist principles to be applied in Hong Kong,'' Mr Law said.

The Journalists' Association was concerned about Article 23's use of terms such as 'seditious publication''. This had the potential to make unauthorised disclosure of protected information illegal and could trap innocent journalists.

Mak Yin-tin, chairwoman of the association, said it was common in China to keep government policies secret before making an official announcement. 'What would happen if we publish some arguments between the SAR and the central government, which led to a change in the original ideas or plans. What will happen if they say the reports are harmful' she asked.

Margaret Ng Ngoi-yee, a legislator representing the legal profession, expressed concern that Article 23 could lead to some citizens losing their residency status.

'If the proposed Article 23 legislation is enacted... will those who fear the effect of the legislation be forced to consider renouncing their residency status, as the Secretary for Security has suggested?

'For the Chinese national or resident with dual nationality, the dilemma is even more grave. After the legislation is passed, they can be forced to renounce their Chinese nationality and live as a foreigner in their homeland or even be exiled.''

Hong Kong's head of the Catholic Church, Bishop Joseph Zen Ze-kiun argued that some provisions in Article 23 ultimately 'undermined the 'one country, two systems' principle'' enshrined in the Sino-British Joint Declaration of 1984.

Similar criticisms were made overseas. The British Government criticised the proposed law as inconsistent with the 'one country, two systems' principle.

The United States Government said Article 23 could undermine Hong Kong citizen's civil rights.

'Especially worrisome are provisions mandating the proscription of certain kinds of popular organisations and the absence of a 'public interest' defence to protect freedom of expression and the press,' the White House said in a statement.

Legislator Martin Lee, who travelled overseas earlier this year to discuss Article 23, said the legislation could affect international confidence in Hong Kong. This included confidence in China's commitment in honouring international treaties, he said.

Another aspect of the controversy was the Government's refusal to issue a white bill. The Government had initially insisted only on a blue bill. But many felt such important legislation required a white bill to give the public more time to scrutinise it and suggest possible changes.

Secretary for Security Regina Ip rejected requests for a white bill by arguing that 'taxi drivers, restaurant waiters and McDonald's staff' would not study the provisions of a white bill in detail. Only experts, such as legislators and academics, would take time to study it, she argued.

The decision outraged opponents of the legislation, who believed the Government was ignoring their views and trying to rush Article 23 into law. 'The SAR consists of the Government as well as the people of Hong Kong. The Government must therefore listen to people and immediately publish a white bill, and then consult the people of Hong Kong on how to proceed further,' suggested Martin Lee.

He said the community has been polarised by the 'hard-sell tactics employed by the Government'' to promote the legislation.

Regina Ip also managed to alienate people with her controversial comments - including a reference to Hitler's rise to power in Germany in 1933: 'Don't believe democracy will be a panacea. Adolf Hitler was returned by universal suffrage and he killed seven million Jews,' she said.

More recently, the Secretary for Security angered people when she suggested that the public would only take part in the July 1 march as 'a kind of activity because it's a holiday'.

She was wrong. The protest - Hong Kong's largest since 1989 - finally convinced the Government of the need to introduce a white bill. On July 17 - almost 10 months after the first calls for a white bill - Mr Tung admitted it was necessary to 'put forward the bill to the whole community for consultation again'.

But he would not say whether a white bill would be published, or give a timetable for the enactment of the law.

The Article 23 controversy has demonstrated how strongly Hong Kong people feel about their freedoms. As chairman of the pro-Beijing Democratic Alliance for Betterment of Hong Kong, Tsang Yuk-shing, said: 'The crux of the issue lies in the inherent fear - deeply-seated in the Hong Kong people - regarding the viability of the 'one-country, two-systems' model.'

Terminology:

sedition: conduct or speech inciting to rebellion or a breach of public order. 2. agitation against the authority of the state.

secession: the act or an instance of seceding or breaking away (from a government or state).

subversion: the act of seeking to overthrow a government or state.

treason: violation by a subject of allegiance to the sovereign or to the state.

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