By Mike Jendrzejczyk, Washington D.C. Director of Human Rights Watch's Asia Division
Published in The International Herald Tribune
October 11, 2002
HONG KONG: The recent cave-in by Hong Kong to pressure from Beijing to enact laws against subversion, sedition, secession and theft of state secrets was hardly a surprise. Hong Kong and Chinese government officials have been threatening to do this since Hong Kong's 1997 handover from Britain to China. But the muted response from key governments was surprising and disappointing. Maybe it was the timing. President George W. Bush is preparing to host President Jiang Zemin at his ranch in Crawford, Texas, on Oct. 25. With Iraq and many other issues on the agenda, the White House may be wary of stirring up a debate with Beijing over U.S. interference in the "internal affairs" of Hong Kong, which is, after all, a part of China. Or perhaps the Bush administration wants to avoid having to defend to China its own restrictions on civil liberties in the U.S. war against terrorism. Britain has thus far refrained from any detailed public comments; nor has the European Union been outspoken. Asian leaders, including the Chinese prime minister, were in Copenhagen for an Asia-Europe Meeting when Hong Kong's secretary for security, Regina Ip, announced the government's "consultation" document on Sept. 24.
By contrast, civil rights advocates and members of Hong Kong's Legislative Council have been vigorous in criticism of the proposal unveiled by Ip. The Hong Kong government claims that laws to apply the legislation will be "clearly and tightly defined" so that fundamental rights and freedoms are protected. Chief Executive Tung Chee-hwa went out of his way to say the new laws "would not undermine in any way the existing human rights and civil liberties enjoyed by the people of Hong Kong," which since 1997 has been styled a special administrative region of China.
But many have objected to key provisions in the consultation document, including proposals to give the police broad new search powers, prohibit groups in Hong Kong from giving support to organizations proscribed under Chinese law for "endangering state security," and criminalize as state secrets (with a five-year prison term) exposure of information on relations between China and Hong Kong.
The document defines treason or attempts to overthrow mainland China's system of government not only in terms of acts of violence but also of "other serious unlawful means," leaving open major potential loopholes. The proposed law would reach Hong Kong permanent residents abroad. So, hypothetically, the Hong Kong government could prosecute someone in Hong Kong for bringing funds to support pro-democracy demonstrators in Beijing, as happened during the protests in 1989. It would also reach foreigners for their acts while in Hong Kong.
Some safeguards are built in, such as review by the Hong Kong courts of decisions to declare foreign political organizations illegal because they are "harmful to national security or unity." But, given Beijing's demonstrated willingness to interfere with Hong Kong's judicial system, how effective would such safeguards be?
The U.S. State Department's most recent report under the U.S.-Hong Kong Policy Act noted concern about the authority of the Court of Final Appeal being undermined by the Standing Committee of the National People's Congress in Beijing when it chooses to "reinterpret" certain sensitive court decisions. Is there any doubt that Beijing would intervene again (as it is allowed to do under the Basic Law) if it felt that Hong Kong's courts were not vigorously applying the new laws on subversion and secession? China is entering a transition period. The new leadership after the Communist Party Congress in November will have to deal with widening rural and worker unrest and restive ethnic minority populations. China's leaders are anxious to see new laws imposed in Hong Kong that would protect mainland China from perceived threats of subversion - whether from Falun Gong or supporters of the banned China Democracy Party - and would further increase the Hong Kong government's almost total executive control.
Autonomy under the "one country, two systems" formula must be strongly defended. The United States, the EU, Canada, Japan, Australia and others should speak up, privately and publicly, to support full protection of Hong Kong's civil and political rights.