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Unformatted text preview: Spring 2004 L13 Lecture 13
Article 23 and Political Changes after July 1 (A) Background to Article 23 Legislation
(1) Article 23 of the Basic Law says that the SAR government “shall enact laws on its
own” (自行立法) to ban 7 types of behaviors (“七宗罪”):
(i) treason (叛國); (ii) secession (分裂國家); (iii) sedition(煽動叛亂); (iv) subversion
against the Central Government (顛覆中央人民政府); (v) theft of state secrets (竊取
國家機密); (vi) prohibit foreign political organizations from conducting political
activities in HK; (vii) prohibit political organizations of SAR from establishing ties
(建立聯繫) with foreign political bodies.
(2) The content of Article 23 was more or less affected by the 1989 Tiananmen
crackdown. In the1988 draft of the Basic Law, the article only forbade secession
and subversion. After 1989, the Central Government was afraid that HK might be
used as a subversive base against China, and added more requirements in the final
draft of Article 23.
(3) Unwilling to stir political controversy shortly after the handover, the SAR govt did
not start the legislation work before 2002. In 2002, several Beijing leaders called
on the SAR govt to enact the Article 23 laws.
(4) In September 2002, the SAR govt released a consultation document on the laws to
be enacted related to Article 23. Contents of the document:
(5) After three months of consultation, the govt. refused to publish a White Bill for
further consultation. The contents suggested in the consultation document were
revised and written into the National Security (Legislative Provisions) Bill (國家
安全(立法條文)條例草案), tabled to the Legco in February 2003. Contents of
the Bill: http://www.legco.gov.hk/yr02-03/chinese/bills/c007-c.pdf
(B) Controversies in the Government Proposal
(1) Treason 叛國
a. The offences are limited to “joins or is a part of foreign armed forces” or “assists
any public enemy at war” with PRC to (a) overthrow (推翻); (b) intimidate(恐嚇); (c)
1 Spring 2004 L13 compel the CPG to change its policies or measures (脅逼中央人民政府改變其政策
或措施) or “with intent to prejudice the position of the PRC at war” (懷有損害中華
b. The major worry was about what is “Assisting public enemy at war” (協助交戰的
公敵)—a “public enemy at war” in the Bill includes the govt. of a foreign country or
foreign armed forces at war with PRC. (Trade or normal economic transactions
during war time? Anti-war Protests? Humanitarian Aid during War Time?)
(2) Secession 分裂國家
a. Use force, war or serious criminal means (嚴重犯罪手段) to “withdraw any part of
the PRC from its sovereignty”(將中華人民共和國的某部份自中華人民共和國的主
b.“serious criminal means” (嚴重犯罪手段) includes a lot of things: (i) endanger the
life of, or serious injury to, a person other than the person who does the act; (ii)
seriously endanger the health or safety of the public; (iii) serious interference or
disruption of an electronic system or an essential service, facility or system.(嚴重干
c. The legal sector pointed out that “secession” was not a common law offence. They
were concerned that large-scale strikes or demonstrations that disrupted traffic or
public facilities could be classified as “serious criminal means.”
(3) Sedition 煽動叛亂
(A) Includes: incites (煽惑) people to commit an offence of treason, subversion or
secession, including inciting people to engage, in HK or elsewhere, in violent public
disorder that would seriously endanger the stability of the PRC.” (煽惑他人在香港或
(B) An offence if a person “publishes, sells, offers for sale, distributes, displays,
imports or exports, prints or reproduces” any “seditious publications.”(動性刊物)
The latter is defined as publications that are “likely to cause the commission of
offences of treason, subversion or secession.”
(C ) Many terms were too vague, which caused a lot of concern among lawyers,
academics, the media, and even university librarians. What is “seriously endanger
2 Spring 2004 L13 the stability of PRC?” What is “likely to cause”? Many believed that even if the
law was not often applied, it would instill a “chilling effect” (寒蟬效應) among the
(D) It punishes an intention rather than action. Government officials also did not
clarify what if those being “incited” do not do anything (煽而不動).
(4) Subversion 顛覆
Subversion means uses force, “serious criminal means” that “seriously
damages the stability of PRC” or engages in war, to “disestablish the basic system” of
PRC(廢除憲法所確立的國家根本制度), or to overthrow or intimidate (恐嚇) the
“serious criminal means”, “seriously damages the stability of PRC”,
“intimidate”, “disestablish the basic system of PRC” are seen as too vague. (Would
the June 4 memorial activities be seen as subversive?)
(5) Theft of State Secrets 竊取國家機密
A public servant is guilty of “damaging disclosure” if s-he
discloses any secret information without lawful authority, and the disclosure will
“endanger national security.” (危害國家安全)
Information is protected against disclosure if it is related to
security, intelligence, defense, international relations or “affairs concerning the SAR
which are under the Basic Law within the responsibility of the Central Authorities.”
The exact range of protected information was unclear, leading to
worries about its impact on press freedom and freedom of information. (e.g., the Case
of Xi Yang 席揚) Even if the information has been previously disclosed by someone
else, the reporter could still be guilty of “unlawful disclosure.” (非法披露)
Even the business sector was afraid that the law might hurt the
freedom of information and hurt the competitive advantage of Hong Kong. (6) Foreign Political Organizations 外國政治組織
(a) An organization in HK will be banned if it is a subordinate of a Mainland
organization that has been proscribed in the Mainland on the grounds that it
3 Spring 2004 L13 endangers national security. An organization is considered a subordinate of a
mainland organization if: (i) it receives financial support from the latter; (ii) it is
under the direct control of the latter; (iii) its policies are determined by the latter.
(b) The first fundamental objection was that it was outside the scope of demands of
Article 23. People easily thought that Falun Gong in Hong Kong or groups in
support of mainland democracy movements could easily be banned. The Catholic
Church felt threatened because they had a lot of links with the “underground
Churches” in the mainland.
(7) Other Issues
(a) It granted police the power to search a premise without a court warrant if the
officer in charge believes that an offence of sedition, secession, treason or
subversion had been or is being committed, and the premise is likely to contain
evidence related to the offence, and the evidence would be lost if action is not
taken. The legal sector and human rights groups thought that this would
drastically increase the power of the police.
(b) Apart from treason, all offences applied to all HK residents, including foreign
nationals. Foreign consulates and chambers of commerce saw this rule of “extraterritoriality” (域外效力) as unreasonable. Critics claimed that this would hurt
HK’s role as an international city.
(c) No time limit for prosecution for sedition and treason. It is still possible for the
govt to prosecute people who supported the Beijing Democracy Movement in
(C) The Struggle Against Article 23
The consultation period In the consultation period from September to December 2002, groups that were
in support and in opposition to Article 23 legislation mobilized to submit their
opinions to the Security Bureau. The groups that opposed the govt. proposals
claimed that it would hurt civil liberties in HK, while those that supported
claimed that it was the patriotic and constitutional duty to enact the laws.
The opposition formed the Civil Human Rights Front (民間人權陣線)(CHRF), a
loose alliance of 44 groups, including human right groups, political parties,
religious groups and other groups. One of the major demands was asking the
govt. to publish a White Bill for next round of consultation.
4 Spring 2004 L13 On December 13, 2002, the CHRF organized a demonstration of 60,000 people
in opposition to Article 23 legislation. The next week, the pro-China groups
organized a rally of 40,000 people.
After the consultation period ended, the govt. concluded that a majority of
submitted opinion was in support of Article 23 legislation. The govt. also
refused to publish a White Bill for consultation.
In the consultation report, the govt. divided the 97,000 submissions into four
categories: individual submissions, group submissions, standard letters and
signature forms. The govt claimed that in the first three categories, a majority of
submitted opinion was in favor of Article 23 legislation. In fact, the signature
forms included 246,000 signatures, with 75% of them opposing Article 23. If all
individual submissions were counted equally, 62.6% of individual submissions
opposed the contents of the consultation document, while only 34.6% supported. The Bill Committee Period The National Security Bill was tabled for First Reading in February 2003. It was
then passed to the Bill Committee. The govt. demanded that the Bill to be
passed before the July recess.
The govt, never effectively explained why the Bill needed to be passed before
July 2003. Many believed that it was done to minimize the political damage to
the DAB in the 2004 election.
In the Bill Committee, the Bill contents were under heavy criticisms and lengthy
interrogation by the pro-democracy legislators. The pro-govt. members tried
their best to shorten the discussion, trying to meet the July deadline. The govt. in
the end was forced to put in 51 amendments to the Bill.
On June 14, the pro-govt. members, with the absence of most pro-democracy
members, finished the scrutiny of the Bill in four hours. They also passed a
motion that subsequent meetings could not re-examine the Bill. July 1 Demonstration The haste with which the govt. and pro-govt. legislators forced through the Bill
created a lot of resentment among the public. The arrogant attitude of Regina Ip
(葉劉淑儀) also drove more people to oppose the Bill.
Different sectors began to mobilize against the Bill: the Catholic Church, the
lawyers, different professional sectors, and the mass media all called on the
people of Hong Kong to march on July 1 to vent their dissatisfaction.
5 Spring 2004 L13 The inability of Tung and the SAR govt. to tackle SARS added to the public’s
anger against the govt. and Tung. The July 1 demonstration, on top of opposing
Article 23, had become a total let-out of the dissatisfaction against SAR
governance since 1997.
The democrats and CHRF linked up Article 23 with the issue of democracy.
They attributed bad performance of the SAR govt. to the lack of democracy.
They claimed that the Legco would pass a Bill that violated people’s interests
because it was not democratic. The slogan of the July 1 demonstration became
“Oppose 23, Power to the People.” (反對廿三，還政於民). The Political Crisis After the 500,000-people march on July 1, the democrats moved a motion to
postpone the Bill’s Second Reading on July 9.
The July 1 demonstration was followed by days of indecision by the SAR govt.
On July 5, Tung announced that the govt. would put in three more amendments
to alleviate worries of opposing groups, but will table the Bill as scheduled.
In the last minute, LP pulled out and decided that they would not support the
Bill. Not having enough votes to pass the Bill, the government announced it
would postpone the Second Reading of the Bill. In September it announced that
the SAR govt. would not table the Bill again. (D) The Aftermath
Before 1123 The struggle against Article 23 was a huge political victory for the democrats,
and dealt a heavy blow to the pro-govt. parties, the DAB in particular. It also
added a lot of fuel to the democracy movement, with direct election of the CE in
2007 and Legco in 2008 chief goals of the democrats. Opinion polls showed that
in late 2003, as many as 75% of the Hong Kong public supported these two
goals, although the ratio declined slightly later.
After July 1, the Central Government was worried about the stability of Hong
Kong, and also that the democrats would win half of the seats in the 2004 Legco
election. They also began to understand that Tung was deeply unpopular in HK,
and the HK authorities had been giving inaccurate information about HK.
The Central Govt’s strategy was to provide extra economic assistance to the
6 Spring 2004 L13 SAR, and asked the SAR govt. to refrain from doing anything controversial.
Central Government Stepped in The District Council election of November 2003 was a heavy defeat for the
DAB, and a huge victory for the democrats, the DP in particular. A much higher
voter turnout implied that a lot of middle class voters who did not vote in
previous District Council elections cast their votes against the DAB.
This, and the 100,000 people march on January 1, 2004, alarmed the Central
Government that the democrats are getting the upper hand, and the economic
assistance strategy was not able to swing the opinion of the HK people.
The propaganda about “patriotism” in February to March 2004 shows that the
Central govt. was worried that popular election may bring about pro-democracy
leaders who would confront the Central. It also shows that the Central govt.
wanted to exert full control over the political reform process.
After the Taiwan election on March 20, the Central govt. took very drastic steps
to kill off the hopes of popular election in 2007 and 2008. On April 6, 2004, the
NPCSC announced that it would reinterpret the Basic Law (again), regarding the
contents related to the change of election methods for the CE and Legco in 2007
Contents of the Interpretation: (1) The electoral methods for CE and Legco in
2007 and 2008 can be amended; (2) To initiate the process, the CE has to draft a
report, the NPCSC will endorse it, and then send back to the SAR to start the
process. (3) The SAR govt. (and not the Legco) will propose the changes. If the
proposal cannot get the support of 2/3 of Legco members, the original methods
of election in 2002 and 2004 will be adopted.
The CE swiftly submitted a report one week later, claiming that the two electoral
methods should be changed, but listed 9 conditions that need to be considered.
Contents of the report: http://www.info.gov.hk/cab/cabreview/chi/executive/pdf/cereport.pdf
On April 26, the NPCSC ruled that: (1) the 2007 CE will not be popularly
elected; (2) the 2008 Legco will not be all popularly elected, and the proportion
of FC and popularly-elected seats will stay the same; (3) the voting procedure
(表決程序) in the Legco remains unchanged; (4) under the above constraints, the
methods of election for the 2007 CE and 2008 Legco can be amended. Prospects 7 Spring 2004 L13 The NPCSC decision showed that the Central govt. places a high value on
political control over the CE and the Legco. They still think that HK is an
economic city only which should not spend too much time discussing politics.
The decision left most problems of governance and institutions of the SAR govt.
unsolved. The political debate over popular election will continue over some
years to come. The decision will also lead to increased polarization within
society in the future. 8 ...
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