Commentary

Liberty Will Survive Hong Kong’s New Laws

This article was published in the Financial Times, Feb. 4, 2003.

Hong Kong is one of the globe’s happier political oddities. Since its handover to China in 1997, the city that is widely hailed as the world’s freest economy has been part of a country that, if no longer quite communist, remains very much a repressive dictatorship. Yet freedom in Hong Kong extends not only to markets but to minds and tongues and printing presses as well.

Is this strange state of affairs known as “one country, two systems” really sustainable? Serious doubts have been raised in recent months by the local government’s plans for security legislation. Opponents argue that the new laws, if adopted, would mark the beginning of the end for Hong Kong’s civil liberties. Under Article 23 of Hong Kong’s Basic Law (the constitutional document that guarantees the city’s special status), the government is required to enact laws against treason, secession, sedition, subversion, theft of state secrets, and foreign political organisations. For five years after the handover from the UK, no effort was made to implement Article 23. But in September of last year, the Hong Kong government announced plans to move forward with legislation - and promptly stirred up a hornet’s nest of protest and criticism.

Much of that backlash has been richly deserved. Inexplicably, the government refused to release actual draft legislation for public comment. Instead it produced only a general summary of the planned legislation. This “consultation document” put forward a number of noxious legislative proposals - for example, subjecting foreign nationals residing in Hong Kong to the law of treason, and treating the mere possession of seditious publications as a criminal offence.

But critics of the legislation overstate the threat to civil liberties, which are likely to remain essentially intact for the foreseeable future. Those who reject new security legislation in principle are not facing reality. Hong Kong’s constitution requires the passage of laws - and if Hong Kong refuses to act, Beijing may take matters into its own hands. The fact that there is no pressing need for the laws immediately is a point in favour of the government’s timing. If the matter were put off until a crisis erupted, the resulting legislation would probably be more draconian.

Furthermore, Hong Kong already has laws on its books against treason, sedition and theft of state secrets. Although the planned legislation would expand the government’s authority in some respects, the new laws are in other ways more liberal than the status quo. This is all the more true now that many of the worst elements of the planned legislation have been dropped. Bowing to public pressure, the government announced last week a number of “clarifications”. Gone now is the applicability of the treason law to foreign nationals. Gone is the crime of possessing seditious publications. In addition, some of the disquietingly vague language in the consultation document has been tightened up.

Treason, for example, was originally defined to include “levying war” against China, an archaic expression that could conceivably have been stretched to include something as innocuous as support for a foreign government’s trade sanctions against Chinese exports. Now the government has made clear that “war” refers only to armed conflict.

In addition, it must be remembered that the Basic Law contains more than Article 23. Article 27 guarantees freedom of speech, the press, association, and assembly; Article 39 grants constitutional status to the International Covenant on Civil and Political Rights. Accordingly, when Hong Kong’s courts are ultimately called upon to interpret Article 23 legislation, they will be constrained by the liberal safeguards of the Basic Law.

Of course, all judgments about Hong Kong’s security legislation remain tentative. The actual legislative language has not been made public, much less debated, possibly amended and enacted by the Legislative Council. Even then, the new laws’ effect on civil liberties will depend on how they are enforced and interpreted by Hong Kong’s government and courts, and how much democratic dissent Beijing will tolerate.

Present-day political realities suggest strongly that Beijing will restrain itself. As long as China hopes for peaceful reunification with Taiwan, it has to maintain a hands-off policy towards Hong Kong to demonstrate that “one country, two systems” works. It is always possible that China will turn belligerent, in which case Hong Kong’s power to preserve its precarious freedoms will disappear in a puff of smoke. But if that happens, what is or is not in Article 23 legislation will not matter much anyway.

Brink Lindsey is a senior fellow at the Cato Institute and author of “Against the Dead Hand: The Uncertain Struggle for Global Capitalism” (John Wiley & Sons, 2002).