Wall Street Journal: Still a Bad Bill

February 14 2003

When the Hong Kong Government unveiled its blueprint for new national security legislation last September, it expected only a relatively modest outcry. Although the proposals -- a modified version of which were published as a draft bill Thursday -- constitute the greatest inroad into the former British colony's civil liberties since the 1997 return to China, the administration of Tung Chee Hwa had chosen its timing with care.

After several years in which Beijing largely kept its hands off Hong Kong, the sense of vigilance that existed immediately after the handover had faded, and the international spotlight had shifted elsewhere. Battered by Hong Kong's second recession since 1997 and with unemployment at a record high, the average citizen was in no mood to worry about legislation so complex that only lawyers could understand all the details. The new measures were skillfully portrayed to the general public as only doing what was required under the Basic Law -- the mini-constitution whose Article 23 requires Hong Kong to legislate against treason, subversion, sedition and secession -- and more liberal than some laws inherited from the pre-1997 era.

Or so authorities thought. But as one senior member of the Tung administration told us recently, "Our enemies proved more numerous than we expected." By enemies he meant those who care about civil liberties and were able to penetrate the legalistic language to discover that liberalizing obsolete laws on treason and sedition -- which had never been used within living memory -- was as nothing compared with the serious threat to basic freedoms posed by other parts of the proposed legislation.

Had the Hong Kong government been able to implement September's blueprint in full, it could have outlawed local offshoots of groups banned on the mainland, such as the Falun Gong, essentially on Beijing's say-so, and without any right of appeal to the courts on the facts involved. Supporting Taiwan's right to defend itself against aggression by Beijing could have become an act of subversion punishable by a life jail term, while journalists, academics and even librarians, risked falling foul of a new offense of possession of seditious publications.

But in recent months Hong Kong people have shown that even in a dismal economy, when many are preoccupied with simply keeping their jobs, they still treasure the civil liberties that Beijing promised in the Basic Law. The government was rattled when 25,000 people took to the streets in December in the largest protest since the handover. About 40% of local journalists signed a petition expressing concern about the effect of the proposed law on press freedom, while opinion polls showed a high level of public concern.

The critics also included businessmen, bankers and even foreign governments. Hong Kong's Secretary for Security Regina Ip inadvertently inflamed the situation, for instance by accusing critics of telling lies and saying that taxi drivers and restaurant waiters didn't care about the details of the proposals. There was even a reference to democracy giving rise to Hitler, for which she later apologized.

But yesterday it started again. Following in the footsteps of Beijing's attempt to exploit the war on terror for its own purposes, Ms. Ip cited Osama bin Laden's latest message to buttress her case for draft bill containing the latest version of the government's proposals.

Though authorities won't use the word "concessions," there is no denying that public pressure has forced them to drop or water down some of the worst parts of September's blueprint. Gone is the proposed offense of possession of seditious publications. A narrowing of the scope of subversion will make it more difficult to persecute those who support democratic Taiwan's right to defend itself.

Even the proposed power to outlaw local offshoots of groups banned on the mainland will now be more tightly defined and subject to review in the courts. Even so, the fact that this power remains, albeit in a modified form, shows the limits of public pressure and that the draft bill, while not as bad as the original proposals, still poses a serious threat to civil liberties.

Blurring the boundaries between the two legal systems, the legislation allows authorities to use Beijing's decision to ban an organization on the mainland -- which might well include human rights groups as well as those agitating for democracy -- as the basis for banning affiliated bodies in Hong Kong, without any need to give reasons for doing so.

Anxious to defuse widespread opposition to this proposal, the government points to various tests which would have to be met before a ban could be imposed, such as being satisfied that it is necessary for national security, and the fact that the decision can now be challenged in the courts. But it's difficult to imagine determined government officials would have any difficulty satisfying themselves such tests have been met. And judiciaries everywhere are reluctant to second-guess governments on national security matters.

Despite its willingness to drop other unpopular proposals, the Tung administration has refused to abandon this one, even though it goes beyond what is required by Article 23, calling into question government's claim to be simply following the wording of the Basic Law. This strongly suggests that Beijing has insisted on a power that, for the first time, will give it some role in what groups are banned in the territory. Evidently still angry at seeing the Falun Gong continue to operate in Hong Kong, [...] it wants to put in place a mechanism that may stop anything similar ever happening again.

Public pressure has worked wonders over the past few months in compelling the government to back away from many aspects of its attack on civil liberties. But its refusal to abandon this most controversial proposal of all signals that, when faced with a clear choice, the unelected Tung administration feels compelled to put doing Beijing's bidding ahead of satisfying Hong Kong public opinion.