Hong Kong's vanishing mojo

The 18th Communist Party congress this month had observers around the world parsing the make-up of the Politburo and the speeches of the Chinese leaders for clues to any change in direction for this powerful nation.

In the case of Hong Kong, Beijing's policy on the special administrative region's governance is normally expressed in dull, formulaic statements reiterating that "the central government supports governing Hong Kong in accordance with the Basic Law". Thus, any departure from this standard line, or omission of the pivotal reference to the Basic Law, cannot but trigger speculation that there may be a change in policy.

And this is precisely what happened at the opening of the congress. In his work report, not only did outgoing party chairman Hu Jintao stress "insistence on the 'one country' principle", while respecting the differences between the two systems, the written version of his report also spelled out the importance of "safeguarding the central authority and the high degree of autonomy of the special administrative regions" and "preventing and keeping in check interference in the affairs of Hong Kong and Macau by external forces". The latter two statements were, however, omitted when Hu read out his report.

Was the latest variation in the formulation of the policy on Hong Kong a shot across the bows to warn off the "Hong Kong separatists" who unfurled the colonial Hong Kong flag in recent protest marches, and who yelled "Chinese, go back to China"? Or was it a harbinger of the resurrection of the much dreaded "evil law", namely, the aborted 2003 bill to implement Article 23 of the Basic Law to protect national security, as some local critics suggested? If Article 23 were indeed on the minds of the Chinese leaders as a cure for Hong Kong separatist sentiments, nothing would be more misguided and futile.

The national security bill that the authorities tried to muscle through the legislature in 2003, commonly referred to by the Western media as an "anti-sedition law", was intended to prohibit offences which threaten national security. In fact , seven such offences are listed in Article 23, of which sedition is only one.

The last time the sedition charge was used against those accused of inciting discontent was in 1967, in connection with the Cultural Revolution-inspired riots in Hong Kong. Several pro-China newspapers were charged with arousing the discontent of police officers and violating the Control of Publication Consolidation Ordinance. Sedition or other national security charges are not known to have been laid against any person since then.

Today, the development of the law on sedition in many common law jurisdictions is such that a charge can only be laid if a person is engaged in overt conduct directed at inciting violence against the authorities. Given the tight remit of this and other national security offences in other common law jurisdictions, it is unlikely that any future national security legislation would be of any use in prohibiting anti-China slogans or flags - acts that do not involve incitement of violence.