Guide to Article 23
(Source: HK Magazine, Issue No. 458 Friday 31 Jan 2003)
(Special Acknowledgement: HK Magazine)
By Joyce Hor-Chung Lau
Even with the government's amendments announced Tuesday [28 Jan 2003] night, the Article 23 issue is still a mess. Your straight-talking expert answers all your queries about Hong Kong's biggest political tussle since the handover.
Dear Mr. Know-It-All: I know this is really simple, but what exactly is Article 23? And why has it suddenly come up as such a big issue now? I know that it has something to do with the Basic Law. -- Constitutionally Confused in Central
My dear reader, you are not the only one who is confused in Central. In fact, when all those activists, politicians and journalists speak of "passing Article 23," they are not quite right. Article 23 already exists. It is part of the Basic Law, the "mini constitution" that stipulates that old laws be rewritten to fit post-'97 Hong Kong. Article 23 is the section that requires that new laws be passed on issues like subversion, treason and secession -- all of which affect the freedom of speech. Mr. Know-It-All assumes that the government didn't initially work on this legislation because they knew what a can of worms it would be. Basically, this is leftover dirty business from the handover.
Simply put, articles don't become laws; bills become laws. Based on Article 23, the government will draft a bill, which will be submitted to the Legislative Council (Legco). If it passes, it becomes law. So, when people say they are "anti-Article 23," what they really mean is that they are against the way legislation is being pushed through without proper public consultation, or the way Article 23-related laws would potentially be worded or enforced.
Dear Mr. Know-It-All: I keep hearing all these big words being used, but I don't know what they mean. What exactly are "subversion," "national security" and "sedition?" What are "treason" and "secession?" -- Dictionary in Disco Bay
Mr. Know-It-All hates to disappoint, but he can only answer your questions in very general terms: "Subversion" refers to the act of corrupting or overthrowing a government; "national security" refers to the way a nation secures its peace and stability; "sedition" refers to conduct or language used to incite a rebellion against authority; "treason" refers to a betrayal of one's nation, especially during times of war; and "secession" refers to the act of seceding from your nation of origin to form your own nation. The key to this debate, of course, is not how the dictionary defines these terms, but how widely or narrowly the Hong Kong courts and government will define these terms. On Tuesday [28 Jan 2003], the government did narrow the definition of what constitutes "war," and drew a few boundaries around what they meant by "secession," "subversion" and "treason." But the real test will still come with how the laws are implemented.
Dear Mr. Know-It-All: I've heard that, if Article 23 legislation is passed, the punishments for breaking the law are really harsh, and that if I do certain things, I could face life imprisonment. Is this true? I'm just a normal guy who reads newspapers and books and spends time online. Could I be at risk? -- Scared of the Slammer in Saikung
Mr. Know-It-All is a bit worried about the slammer himself. According to the proposed laws, one could be imprisoned for life if found guilty of treason, secession, subversion or sedition. According to a Wall Street Journal editorial printed December 16, this could include activities as common as hacking into a computer, which -- while not exactly a good thing to do -- hardly warrants such a heavy punishment. In addition, those who are found guilty of publishing "seditious material," or of indicting "public disorder," could face fines and/or seven years in jail.
Dear Mr. Know-It-All: What's the difference between a consultation paper, a white paper and a blue paper? Why does the color matter so much? -- Color-Blind on Connaught
When you hear people talking about the "consultation paper," they are referring to the document that the government released in September . It outlined the goals of potential Article 23 legislation and was supposed to be the document on which people could base their opinions, which they could then submit to the government during the set consultation period. The problem, of course, is that this consultation paper had very little detail, and, as Anson Chan so wisely said, "the devil is in the detail."
There were many requests for the government to release a "white paper," which is what you call a detailed draft of a proposed piece of legislation. It would give the public a chance to see the exact language and wording of the proposed new laws. Some polls show that up to 70 percent of Hong Kongers wanted a white paper, but the government refused to issue one. In Legco, Regina Ip controversially said that Hong Kong's "taxi drivers, restaurant waiters and McDonald's staff" would not be able to understand the legalese and therefore there was no use for a white bill. Then, in Mr. Know-It-All's humble opinion, Ip herself played dumb when she asked, "What is wrong with the blue color?... People can read it even if it is printed on blue paper. As for the color of the paper, I would have thought the most important thing is the content and not the color." For one who has been in government for so long, Ms. Ip knows full well that a "blue bill" submitted directly to Legco for approval will most likely go straight into becoming law, with little of no chance for public comment or amendment.
According to a Reuters report, it is widely expected that a "blue bill" will be submitted to Legco as early as next month [Feb 2003]. It is said the government wants the bill to be passed by Legco by July. Even if that happens, however, July will not be the end of the debate, because many of the potential problems with Article 23 legislation lie in how that law will be enforced. It will only be the beginning. As the Far Eastern Economic Review called it, Article 23 has the potential to be "the real handover."
Dear Mr. Know-It-All: I have a lot to say about Article 23. I went to the march, but I don't think that the government cares about 25,000-60,000 people taking to the streets. Can I still submit my views to the government, even though the official consultation period is over? -- Activist in Apleichau
How dare you call yourself an activist if you give up so soon, or be deterred by something as arbitrary as a government-imposed "consultation deadline?" Even Ms. Ip said on Tuesday [28 Jan 2003] that, "the government will continue to welcome views from the public." The government got over 97,000 responses during the consultation period, though letters, complaints and commentary are still pouring in. If you want to have your say, try sending your letter to email@example.com. Or, email members of the Executive Council, to whom the Security Bureau must report on this matter. Mr. Know-It-All advises that you make the most of that cc: option on your email. Here are some handy emails: Chief Executive Tung Chee-hwa (firstname.lastname@example.org), Chief Secretary Donald Tsang (email@example.com), Financial Secretary Antony Leung (firstname.lastname@example.org), Secretary for Justice Elsie Leung (email@example.com), Secretary for Security Regina Ip (firstname.lastname@example.org), Secretary for Home Affairs Patrick Ho (email@example.com) and Secretary for Constitutional Affairs Stephen Lam (firstname.lastname@example.org).
Dear Mr. Know-It-All: I am a Hong Kong-based businesswoman with Taiwan links: I do a lot of business in Taiwan, and I am married to a Taiwanese man. I am generally not a very political person; I'm not the sort to protest in the streets or make a big fuss. But I am sympathetic to Taiwan's position. Could this get me in trouble post-Article 23? -- Taiwan Tai Tai in Tai Tam
According to an article published on December 19, 2002 in the Far Eastern Economic Review, "under the new laws, fund managers running joint ventures with affiliates of Taiwan's pro-independence party, for example, could find themselves in hot water." This is because the Article 23 law might give the government the power to "proscribe" organizations, which it can do if that organization has already been proscribed on the mainland. So, if the government proscribes an organization it dislikes, it would become a crime to support any activities related to the organization. So, for example, if there were a businessman in Taiwan who supported Taiwanese independence, and his company became proscribed, he or she could get in trouble with trading with one of these affiliates, even if they were unaware of the political implications.
Dear Mr. Know-It-All: I have a really great friend in Tibet. She and I always send letters and books and emails back and forth about love, life, politics freedom, faith, etc. Will I still be able to do this after Article 23? -- Lama Lover on Lamma
Even Mr. Know-It-All cannot tell you what the practical ramifications of this legislation will be as, unfortunately, he is not in charge. But Mr. Know-It-All can say that Taiwan and Tibet are in the same boat, so to speak. This is because the Chinese government has already deemed the Dalai Lama, as well as Taiwan nationalists, to be "splittists," which means they already violate the "secession" part of the Article 23 deal.
Dear Mr. Know-It-All: I hold both a Hong Kong permanent ID card and a Canadian passport. Does this allow me more protection if Article 23 legislation is passed? -- Foreign Devil in Fortress Hill
According to Tuesday's [28 Jan 2003] newly revised proposed law, only Chinese nationals will be able to be charged with treason; though that still leaves room for non-Chinese nationals to be charged with other crimes like sedition. The basic rule is this: If you are in Hong Kong, you must abide by Hong Kong's laws and be judged by Hong Kong's courts, no matter what other passport you hold. According to Martin Lee, who was interviewed in the Toronto Star newspaper in December, even Canadians with Hong Kong residency could potentially be arrested upon re-entry to Hong Kong if it were suspected that they had engaged in "anti-China activities" while overseas. Let Mr. Know-It-All use a hypothetical post-Article 23 scenario: Let's say you are an ex-pat from Canada, now based in Hong Kong on a work visa. You go back to Toronto, where you take part in a pro-Tibet rally and are interviewed on the CBC about your views. You also happen to be wearing a yellow t-shirt and waving your arms around. A month later, you come back to Hong Kong, traveling on your Canadian passport, with Tibet and Falun Gong books in your bag. Can you still be arrested at Hong Kong International Airport for something you said half-way across the world? Of course you can. As for special protection because of your Canadian passport, that is not guaranteed. If you are, God forbid, thrown in jail for taking part in a pro-Tibet rally, then it's probable that the Canadian government would somehow stand up for you, most likely by sending a request to the Hong Kong government for your release. But, still, the final decision would depend on the authorities here.
Dear Mr. Know-It-All: I am a stock broker and, to be honest, don't care much for politics or civil rights. But I'm worried about Article 23 because I see that many chambers of commerce, as well as some overseas business groups, have voiced their concerns. How will Article 23 affect those of us who are just here making a buck? -- Money-grubbing in Midlevels
On Tuesday [28 Jan 2003], the government pledged "not to extend financial investigation powers." But, if you are a good stockbroker, then Mr. Know-It-All assumes that you know how quickly and sensitively the markets react to news -- not just business news, but news about politics, natural disasters and many other things. For example, if you invest in an agricultural firm, you will want to know if farmers have suddenly all gone on strike, or if there was a sudden cold spell that killed all the crops. Good, sound investing depends very heavily on the free flow of information.
The potential problem here is that the Chinese government has had a long history of regarding economic information, or even financial speculation or predictions, as "subversive" political information, whereas most countries draw a line between these two very different things. If Article 23 legislation is enforced in Hong Kong the way it is in China, then it could be a problem for the city's now-free business press.
The example that keeps coming up is that of the Hong Kong-based journalist who was charged with the "theft of state secrets" and sentenced to 12 years in a mainland jail in 1993. His crime? Writing about interest rate policy and possible gold sales.
Ten foreign banks from nations such as the US, UK, Germany and France have all expressed concern about the way Article 23 would affect the way Hong Kong does business.
Dear Mr. Know-It-All: I'm curious to know what all the local journalists think. I believe they are the ones who will be affected most by Article 23 legislation. --Sympathetic on Seymour
Mr. Know-It-All does not like speaking on behalf of others, but mega-publisher Jimmy Lai (who's behind the often critical Apple Daily) has likened the proposed law to "an invisible, tightening collar." Suffice to say that about 40 percent of local journalists signed a petition against Article 23. And, according to a survey conducted by the Hong Kong News Executives' Association, 78 percent said legislation would affect freedom of speech; 70 percent said self-censorship would worsen; and about 10 percent said they would quit their jobs if Article 23 becomes law without public consultation.
Dear Mr. Know-It-All: I know that this debate has lots to do with freedom of speech, but doesn't it also concern freedom of religion? What will happen to spiritual groups like the Falun Gong? And what about the outspoken bishop, whom the government doesn't like so much anyway? -- Religious in Repulse Bay
Well, Religious, the Article 23 consultation paper does have a chapter titled "Banned Foreign Organizations." On the mainland, this means both the Falun Gong (which the Chinese government has officially dubbed an "evil cult") and the "underground" Catholic Church, to which many Hong Kong Catholics donate money. Ah, how some fights make strange bedfellows. During the anti-Article 23 march last month, conservative Catholic groups marched alongside kooky Falun Gong practitioners. As for the outspoken cleric, Hong Kong's Bishop Zen has called the potential legislation "very dangerous," and has even spoken out publicly in defense of the decidedly non-Catholic Falun Gong. And, yes, if legislation goes through the way most everyone predicts it will, Mr. Know-It-All fears that it could be bad news for both traditional and non-traditional spiritual groups. After all, look at who will have final say on the matter: Regina Ip.
Dear Mr. Know-It-All: My friends email me magazine articles, journals and even film and TV clips from all over the world. I view 'zines, avant-garde art and political tracts online. Will the government start censoring my email post-Article 23? How about my Internet activities? -- Surfer in Saikung
On Tuesday [28 Jan 2003], the government backed down on banning the mere possession of seditious publications. Still, you might be punished for dealing, printing, publishing or trading in these publications. So, even if you don't agree with a certain banned writer, you could still be in trouble for circulating, forwarding or Xeroxing his or her writing.
As for the Internet, this is one area that is currently causing a lot of trouble on the mainland. A CNN report that aired December 3 stated that the Chinese government could be blocking as much as 10 percent of the Internet. CNN quoted a Harvard University study that found that, of the top 100 results found on a "news" search on Google, 42 could not be reached from within China. "Banned" subjects range from Tibet to Taiwan, from HIV to avant-jazz. As for enforcement, the authors of the study were quoted as saying that "The government might encourage Internet access through cyber cafes rather than in private spaces so that customers' surfing can be physically monitored."
Dear Mr. Know-It-All: What exactly is the International Covenant on Civil and Political Rights? Did we sign it? Isn't that enough to protect our freedoms? -- Wondering in Wanchai
The Basic Law requires that the Hong Kong government comply with the human rights guarantees set out in the International Covenant on Civil and Political Rights, which were adopted by the United Nations in 1966. (For more information, go to www.unhchr.ch, the website of the Office of the High Commissioner for Human Rights.) Technically, Article 39 of the Basic Law includes a guarantee that no law can be enacted if it contravenes international standards of human rights.
Still, some Article 23 critics, like the Hong Kong Bar Association, say this is not enough. They want the Hong Kong government to also adopt the Johannesburg Principles, which deal more with protecting the freedom of expression, particularly in the context of national security. Frances D' Souza, who helped draft the Johannesburg Principles, made this comment while in Hong Kong in early December: "There is no question that Article 23 is an extraordinarily backward step ... It's akin to putting people in a police state."
Dear Mr. Know-It-All: Everyone keeps talking about all the harm Article 23 will do. But nobody's explained what good it could do. Will it make Hong Kong a better place? Will it control "bad press," like tabloids with naked girls and suicide photos? -- Squeamish in Sheung Wan
First of all, Article 23 concerns itself with politics, not pure ethics or morals. So, no, Article 23 legislation will do little to help clean up the tabloids in terms of photos of half-naked nubile girls or gory crime scenes.
As for what good Article 23 can do, let's look at what the pro-Article 23 people have to say. During their demonstration they handed out small red stickers that read: "National Security: Everybody's Responsibility." "Safeguarding national security is the duty of every Hong Kong fisherman and other citizens," pro-Beijing DAB lawmaker Wong Yung-gan was quoted as saying to the Associated Press.
Well, Mr. Know-It-All must concede that Wong has a point (although, what fishermen have to do with it is a mystery). But back to the issue at hand: Just about every country in the world has laws that deal with national security and protecting the stability of the state. These are to prevent citizens from seriously damaging things, like giving away military secrets to an enemy during war, or funding a terrorist group. Hong Kong should have laws pertaining to this, too. The problem here is that, with China, you have a country that does not distinguish between legitimate protest and criticism, and serious crimes against the state. China has more jailed journalists than any other country in the world.
Dear Mr. Know-It-All: This all sounds like bad news. Is there hope? -- Fatigued in Fanling
Dear Fatigued, there is always hope, especially with Tuesday's stripping back of the controversial law. Mr. Know-It-All has always been a big believer that the only truly mortal sin is that of despair. After all, if there was no hope, why would so many protesters, politicians, businesspeople and activists both here and overseas be wasting their precious time and effort? Don't forget all of the scenarios set forth in Mr. Know-It-All's article -- as well as most articles out there -- are speculative. A blue bill has not even made it to Legco, much less become law. This means that the police are not going to start busting into Internet cafes tomorrow. Plus, to put things in perspective, Hong Kong still has a vibrant, free press, especially by Asian standards. And, despite what Ms. Ip might say, we have a well-educated and politically engaged public who are not afraid to speak their mind. The next six months should be interesting, at best.
Bob Allcock, Solicitor-General. Although Allcock is very obviously on the pro-government side of things, he seems to be a voice of reason. In fact, it seems to be his job to just calm people down. "I know that some people are sincerely worried," he said on RTHK. "The concerns so far have been noted by the government."
Regina Ip, Secretary for Security. Ip is officially the policy head for Article 23 legislation. She recently made several controversial comments about democracy and free speech. "Hitler came to power by democratic election, and he killed 7 million Jews," she stated in a university lecture. "The mainland has assured us that no one gets prosecuted in China for political crimes," she told Legco. Her final hurrah was when she said Article 23 critics had "deceived the public."
Martin Lee, Legislator; founder and former leader of the Democratic Party. Lee basically went on a worldwide anti-Article 23 tour, giving speeches, meeting foreign government officials and even briefing US National Security Adviser Condoleezza Rice. He has called Article 23 legislation "the last nail in the coffin."
Elsie Leung, Secretary for Justice. Technically, it is her job to safeguard the rule of law in Hong Kong, though many critics have found her deferring to Ip instead.
Timothy Tong, Acting Permanent Secretary for Security. Little known before the Article 23 debate, Tong is essentially Regina Ip's right-hand man. He has had pro-Article 23 letters to the editor printed in both The Wall Street Journal and The New York Times.
Tung Chee-hwa, Chief Executive. Except for a token comment given as part of his Policy Address, Tung has been very quiet about the subject.
Qian Qichen, China's Deputy Prime Minister (also called Vice-Premier), responsible for Hong Kong affairs. During the fifth anniversary of the handover in July, Qian declared that anti-subversion laws should be implemented as soon as possible. He has spoken in favor of Article 23 legislation many times since then.