Dear Subscribers and Friends,

 

The HKSAR Government is spending the rest of the summer working on a consultation document and process for the Article 23 national security legislation that did not get passed on 9 July. Reviewing what happened during the whole episode provides insight into how the government adopted an inflexible strategy that in the end backfired.

 

The Article 23 saga was the "perfect storm" - clearly brewing in the distance but where the government protagonists ignored the signals until the Typhoon signal number 10 was hoisted and left it devastated.

 

A. The Perfect Storm

 

1. 1997-2002: During the Chief Executive's (CE) 1st term of office, a decision was made not to push for passage of Article 23 legislation.

 

2. 2002-2003: A decision was made that legislation should be passed during the 1st year of the 2nd term. Officials started to lobby in the summer of 2002 that they would publish a consultation document soon but gave assurance that they were taking a minimalist approach and no one needed to worry.

 

3. Sept-Dec 2002: The consultation document was published with a 3-months period for comment. The contents raised many concerns. The public asked for a White Bill so that they could see how the law would be drafted. The government refused. The consultation drew 97,097 submissions from Hong Kong with 340,513 individuals putting their names to them and 3,812 overseas responses with 29,099 individuals signing them.

 

4. Dec 2002 protests: On 15 December, thousands of people protested and called for a White Bill. On 22 December, pro-government forces also demonstrated to support the need for legislation.

 

5. Jan 2003: The government released the results of the consultation. In desiring to get the results it wanted, honesty was put aside [see Newsletter 28/1/03]. Interpretation of the responses was poorly done, upsetting many respondents.

 

6. 26/2/03: The National Security (Legislative Provision) Bill was introduced. Lawyers noticed even more problems.

 

7. March-May 2003: The SARS outbreak overwhelmed Hong Kong. Many legislators asked for more time to discuss the Bill as everyone's attention was focussed elsewhere. SARS subsided by end May.

 

8. May-June 2003: Once the media and public refocussed on the Bill, Article 23 legislation became the next big issue post-SARS. A group of academics had by then trawled through all the consultation responses and produced their detailed analysis of the results showing that the government's interpretation was faulty. Indeed, the majority did not support the content of the government proposals. Debate within LegCo was heated. The government insisted on passage of the Bill on 9 July. Public opposition began to mount.

 

9. 1 July 2003: More than 500,000 people protested at a march against Article 23 legislation. Weeks before, the government had anticipated between 30,000-70,000 people on various occasions. The week before, the organizers expected 150,000. Four days before, the number had risen to 250,000. Private polls showed that a very much larger number of people could show up.

 

10. 5 July 2003: Clearly stunned, the CE announced that he would give three concessions but not on passage on 9 July.

 

11. 7 July 2003: James Tien of the Liberal Party and minister without portfolio resigned from the Executive Council. This meant passage of the Bill could not be assured without the party's eight votes. The party called for delaying passage. The CE had no choice but to withdraw the Bill then.

 

12. Postscript: Since then, there were protests on the 9/7 and 13/7; two ministers resigned and the CE travelled to Beijing so that Beijing could show that he still had their support. He promised to consult more widely and to listen to the public [Newsletters 16/7 and 20/7]. The government is now working on a new consultation document for release in the autumn.

 

B. Analysis - strategy of inflexibility

 

It is extraordinary that the Tung Administration (TA) should fail to pass Article 23 legislation despite having 6 years to think about and plan for it. Naming it the National Security bill, the TA had in fact upped the stakes by making an explicit reference national security. The government did that presumably believing that it would be easier to get legislation passed. With the benefit of hindsight, it is now possible to follow the path to failure that was adopted:

 

1. Pretend: The TA pretended that there were no issues with what it wanted to do and it was caught out as the CE's final three concessions proved.

 

2. Refuse: The refusal to provide a White Bill for consultation was the first signed of the pretension that sowed the seeds of distrust with the public. This indicated the TA itself focussed more on form than content.

 

3. "Consult": The initial consultation process proved not to be genuine, which made the public more distrustful still.

 

4. Leadership: The leadership role on helping the public to understand the content of the bill was taken up by lawyers, who in the mean time had become expert in the law and could effectively rebut the TA's arguments. The lawyers forced the issue on content when the TA still talked about form (i.e. that Hong Kong needed to pass legislation as a principle).

 

5. Regina Factor: The former Secretary for Security angered the public on many occasions with her manner in taking questions on the bill particularly during June 2003 and forgetting that there was little trust between the TA and the public thereby embedding frustration and anger even deeper. She and the wooden responses from the CE caused public dissatisfaction to well up.

 

6. SARS Factor: During the outbreak, Hong Kong people came together as a community for a common cause. It helped to ignite a feeling that ordinary people could do extraordinary things and they did on 1 July.

 

7. Faulty antennae: Right up until the storm, the TA refused to acknowledge the widespread discontent with the bill and how it had been handled. The TA believed that it could get it passed LegCo, which blinded them to the brewing storm.

 

The TA has many choices to get the next stage of consultation right. To regain trust, it has to work doubly hard. The early signs are not good. The CE continues to pretend that people protested because of poor economic conditions and that they did not understand the bill. When asked about specific issues, he called them "technical issues". If the TA continues to push along the lines of the current draft bill in its consultation it could invite another storm. The TA does not seem to realize that it has already ceded leadership on helping people to understand the bill to Hong Kong's lawyers, who are trusted by the public to help them understand complex issues.

 

CHRISTINE LOH

Civic Exchange - Hong Kong's independent think tank

www.civic-exchange.org

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