Subverting a winning system

South China Morning Post
9 July 2002

Public attention is focused on plans for a subversion law as Chief Executive Tung Chee-hwa begins his second term. I believe the people should be reminded of the relevant articles of the Basic Law and decide whether we really need to enact such legislation.

Article 23 requires the government to effect legislative to prohibit, among other things, subversion against the central government.

When the first draft of the Basic Law was published for consultation in April 1988, the then Article 22 said:
"The Hong Kong Special Administrative Region shall prohibit by law any act designed to undermine national unity or subvert the Central People's Government."

This article was roundly criticised by the Hong Kong media, the legal community, legislators and many members of the Basic Law Consultative Committee.

A common criticism was that its wording was too vague and covered a multitude of actions that were freedoms guaranteed by the Sino-British Joint Declaration but could be viewed as counter-revolutionary by Beijing.

More importantly, from a legal point of view, the article contained concepts which were totally inconsistent with the Common Law, which was guaranteed to apply to the future SAR.

The criticism led to a totally reworded Article 23 in the Second Draft of the Basic Law, published in February 1989.

Under the new draft article, Hong Kong "shall enact laws on its own to prohibit any act of treason, secession, sedition or theft of state secrets."

This was one of the most important improvements on the First Draft of the Basic Law. The language was precise and the concepts were consistent with the Common Law; and it added the important words, "on its own".

Then came the massacre on the June 4, 1989, and the work of both the Basic Law Drafting Committee and the Basic Law Consultative Committee was indefinitely suspended.

The Drafting Committee resumed its work a few months later, and the Basic Law was promulgated on April 4, 1990, exactly 10 months after the massacre.

As Beijing leaders felt insecure about their own position in government, the operative word for Hong Kong was "control". Thus, draconian changes were made to the Second Draft, including Article 23.

The article now reads: "The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies."

Before Mr. Tung and his administration goes ahead to propose legislation under Article 23 of the Basic Law, it must be reminded of the key issues.

Firstly, in February 1989, the leaders in Beijing clearly thought that it was unnecessary for the HKSAR to prohibit "subversion against the Central People's Government".

Secondly, although subversion has been added to the final version of Article 23 of the Basic Law, the phrase "on its own" remains unchanged, and it must therefore mean that it is for the Hong Kong to decide what is the proper time to enact such laws, and what specific conduct should be prohibited.

In other words, it is up to Hong Kong, not Beijing, to decide both as to timing and content of any legislation under Article 23.

Recently, Vice-Premier Qian Qi-chen made public statements to the effect that the SAR should legislate under Article 23 as soon as possible to prohibit the activities of Falun Gong in Hong Kong.

These statements constitute a clear breach of the principle of Hong Kong people ruling Hong Kong with a high degree of autonomy as well as Article 23, for it is not up to Beijing to decide when and how we should legislate under that article.

Secretary for Justice Elsie Leung Oi-sie recently said existing laws in Hong Kong already cover some of the aspects of Article 23, and that it is only in relation to secession and subversion that legislation was required under that article.

But before anything is done, Mr. Tung and his government must ask themselves this question: Is there a need for such legislation in Hong Kong in the foreseeable future?

Let us look at some incontrovertible facts. First, the HKSAR has existed for 5 years without any law on secession and subversion. Second, even in the absence of such laws, political stability has been totally satisfactory. Nobody in Hong Kong has ever advocated independence. There is no support at all for the independence of Taiwan or Tibet.

The Democratic Party fully supports the "one China" policy and the reunification of the Mainland and Taiwan. The party only urges that the Taiwan issue not be resolved by force, and that violence must not be used in Tibet.

Falun Gong followers are potential targets of Article 23. However, they have been among the most peaceful demonstrators in Hong Kong - they never use violence, they do not even raise their voices - they merely conduct breathing exercises in public.

If it as shown that such legislation was unnecessary at the handover on 1st July 1997, why is there a need today? Indeed, every day that passed by peacefully strengthens the case against legislation.

If some Beijing leaders are misinformed about the conditions in Hong Kong, it is the duty of Mr. Tung to explain to them that these five years of political stability has been achieved without any such legislation.

Whenever I am asked by overseas journalists to give examples that "one country, two systems" is working, I always tell them that Falun Gong followers are free to demonstrate while their mainland counterparts are thrown into prison.

The international community is keeping a watchful eye over Hong Kong. It is incumbent on Mr. Tung to explain to the leaders in Beijing that people overseas and in Hong Kong regard the continued existence of our freedoms to be of fundamental importance to the successful implementation of the "one country, two systems", and that they regard the enactment of any law on secession and subversion to be both unnecessary and dangerous.

Martin Lee is the Chairman of the Democratic Party, a directly elected legislator and a former member of the Basic Law Drafting Committee